Transcript Document

 “Piranha”
questions
 “Be my lawyer” questions
 “Do my legal research for me”
questions
 “Get Out of Jail Free Card” questions
 “How do you interpret the law”
questions
Examples:
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Are there any state laws that prohibit someone from
bartending if they have a DUI conviction?
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How old do you have to be to work in a bar?
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Can you give me the exact wording that would need
to be used [in a local option petition] and also the
exact information the person signing would need to
supply, such as, name address, etc.?
Example:
Example:
Example:
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Tightening of governmental budgets resulting in
fewer agency employees (more work for fewer
employees)
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Retirement of key employees with institutional
knowledge
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Ease of modern communications- websites, cell
phones, emails
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Complexity of laws and new business models
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Increased interest in alcoholic beverage businesses
and alcohol sales
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People not wanting to hire private attorney
Staff Attorney Email:
Steve,
Can I work comp time over the weekend if
need be? I am trying to get ready for a
deposition on Tues. and not having much luck
avoiding piranhas.
Thanks,
Kimberly
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Agency attorneys only have so many hours in a
day.
Attorneys have higher priorities/responsibilities
such as administrative case preparation and
trial, original and appellate court litigation,
drafting regulations, etc.
Negative public complaints if do not respond
Difficulty finding balance
Is legal division providing adequate legal
services to client agency?
When does a state attorney cross the line from
being a helpful public servant to providing legal advice
to a private citizen?

What are my ethical duties as a state attorney about
providing legal advice and opinions to private citizens?
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Does state attorney subject himself to possible
negligence or liability claims when person financially
acts on provided information and the business fails or
other problems arise?
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SCR 3.020 Practice of law defined
The practice of law is any service rendered
involving legal knowledge or legal advice,
whether of representation, counsel or
advocacy in or out of court, rendered in
respect to the rights, duties, obligations,
liabilities, or business relations of one
requiring the services.
Kentucky law prohibits state
employees from using state paid time
or resources to perform work or receive
private benefits for self or others. See
KRS 11A.005; EBEC AO 99-7.

The Department is also prohibited
from endorsing or promoting a specific
product or company. See, KRS
11A.020(1)(d).
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Example:
I have to [sic] additional questions.
Wine Galas: Wine galas within our grocery stores, which
are conducted after hours when our store is closed under
our off-premise license, can this occur? If yes, would the
sampling/tasting guidelines remain the same?
Store to Store Transfer of ABC Products and
Inventory within the State/County/City (e.g. closing one
store within the State/County). If yes, please let me know
the procedures of how we should handle such transfer
and, if necessary, which forms needs to be completed.
Please advise. Thank you.
[Paralegal for National Retailer]
Example:
I am interested in opening a business where
customers come and “brew” their own beer on
premises. I will supply all of the materials for the beer
production and teach each customer how to make
their own beer. I want to allow the customer to take
their “homemade” beer home as well as consume on
premise simultaneously during the same visit that they
have made their beer. What are your thoughts? I
would like to have a face to face sit down with you as
soon as possible. I have their hole [sic] business plan
ready for you to review. When are you available for a
meeting?
Thanks
[Person]
Example:
I am in charge of our parish festival this year and I want to
educate myself on ABC laws and charitable fundraising events. I
have many questions I could start with a few...
Are I.D. Bracelets required?
Do signs need to be posted regarding alcohol purchase?
We have always sold beer, is wine covered under this license?
Is sealed alcohol allowed in raffle baskets?
I have seen "wheel barrels" of liquor raffled off at other festivals.
Is that legal.
Are liquor ring toss games legal?
I think that will give you an idea of my lack of knowledge! I
appreciate any guidance you can provide me. [Person]
Example:
I want to start an internet sales company shipping
spirits out of state from [an] Ohio county. What
permits do I need.
Thanks
[Person]
Polite Form Response:
Your inquiries call for legal research and opinions more
appropriately addressed to a private attorney. Kentucky law
prohibits me from using state paid time or resources to
conduct legal research for the benefit of a private entity. See
KRS 11A.005.
Links to the alcoholic beverage control statutes and
regulations are available at http://abc.ky.gov/Pages/
default.aspxlaws. The National Association of Alcoholic
Beverage Licensing Attorneys (http://www.naabla.com/) has
several private attorneys who might assist you. The Kentucky
Bar Association (http://www.kybar.org/26) provides contact
information for all Kentucky attorneys. I hope these links may
be of help to you.
Responses to Polite Form Responses:
“I can’ afford an attorney. That’s why I emailed
you.”
“I pay taxes and my taxes pay your salary so you
work for me. Answer my question OR ELSE.”
“It is great to know what my tax dollars do and do
not pay for. I am a volunteer running a charity
event, which means I do not have the funds to hire
a lawyer. Although, the questions I asked were
many, I didn't think they would require legal
research for a knowledgeable individual employed
in your field.”
Example:
Thank you for your message.
We understand that the proposed activity does not fall
exactly within 804 KAR 1:110, we were not able to find
another law or regulation that would applicable.
Since that is the case and with our intent to be in
compliance, will you please advise whether the
proposed activity would be permissible in
Kentucky? Perhaps under a different section or the
federal rule?
[Out of State Attorney]
Example:
I have an on-premise restaurant client that would like to do beer
sampling/tastings in your state, and my research is not resulting
in a definitive determination as to exactly what they can and
can’t do. I would very much appreciate your response to the
following questions:
Can restaurants licensed to sell beer, wine and spirits offer free
beer tastings to consumers on the restaurant premises? Are
there any special license or permit requirements (besides its
regular retail license) in order to provide tastings to consumers?
Are there any other restrictions or requirements pertaining to
tastings/samples offered by restaurants to their customers?
[Out of State Attorney]
Example:
I am writing on behalf of [NAME], a marketing and
advertising agency based in [CITY]. I am writing to seek
approval for a planned consumer loyalty program that my
agency will be licensing to and/or administering on behalf
of certain of our clients who are alcoholic beverage
importers and/or distributors.
The program will… [details].
Please feel free to contact me with any questions or
concerns. If none, please provide your approval via email
as soon as possible.
[Out of State Marketing Company]
Out-of-State Attorneys and advertising/marketing
firms often send the Department multi-page
question forms about state law to fill out and
return.
Problem with many of these types of questions is
that state attorneys are directly performing legal
research and work for private businesses or
attorneys who are being paid for the work.
Dept. cannot endorse companies.
Precious legal time spent on unregulated persons
and companies located outside the state.
Example:
Thank you for talking with me on Tuesday afternoon
regarding KY ABC’s position on Texas Hold ‘Em in ABC
licensed premises. As a responsible small business owner,
I have read the ABC regulations on line and in print, as well
as the opinion statements posted monthly online. We
believe we have complied completely with all regulations.
I am sending you the structure of how we conduct our
games and our business. Please review and let us know
where you feel we have an issue that we need to address. I
look forward to hearing your opinion as soon as possible.
[Third Party Promoter]
Example:
We represent [NAME], a licensed Kentucky wholesaler, in
its alcoholic beverage licensing and regulatory
matters. [NAME] would like to offer a 12-week course of
instruction to retailers and their employees, specifically bar
tenders, called the [BARTENDER SCHOOL]…[details of
BARTENDER SCHOOL].
The state law that most resembles the course of instruction
described above is Section 804 KAR 1:110. The section
permits educational meetings sponsored by wholesalers
under certain guidelines including but not limited to the
following:…
We want to ensure that we are in compliance with KY laws
and regulations. [Out of State Attorney]
Department has a problem with answer shoppers/
“fishermen”.
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Callers leave out important facts (often purposely)
that change answers or analysis.
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Many callers are often reluctant to put questions in
writing.
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Many times these questions come from third party
vendors attempting to market products to licensees.
They try to use Department responses as
endorsements to market products.
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State attorneys are not malpractice insurers.
Example:
I work in the legal department of [LARGE RETAILER]
and we are considering using electronic transfers for
payment purposes for malt beverages received from
our distributors. Section 244.040(d) provides that such
transfers need to be initiated by the distributor. It has
been suggested to us that this should be interpreted
as meaning …. [interpretation].
Could you tell me if this interpretation of the statute is
correct? Thank you in advance for any guidance you
can provide.
[IN HOUSE ATTORNEY FOR LARGE RETAILER]
Example:
We inquire as to whether the conviction of a principal officer
(of an existing license holder) of any of the following
California crimes as misdemeanors will result in the refusal
to renew of a license in Kentucky….: Dry reckless driving
offense…. Wet reckless driving…. Hit and run driving
offense…. Child endangerment offenses…. Driving under
the influence, a DUI offense.
Will a permit holder’s conviction under any one or any
combination of these crimes result in the refusal to renew
of a license in Kentucky [by operation of KRS 243.100]?
[OUT OF STATE COUNSEL]
Example:
The question concerns KRS 243.270 (Special Private Club
License) and what type of licenses are compatible (KRS
243.110). In looking at the history of this license my read is that
a Special Private Club Licensee (NQ3) cannot also have a retail
or equivalent license for public service at the same property
location. See Pendennis Club, Inc. v. Alcoholic Beverage
Control Board, 151 S.W.2d 438 (Ky. 1941) (attached).
My specific question is whether …[legal issue]. My initial thought
is that …[legal opinion].
Aside from what I might think, I did not want to go through the
process of having my client apply for a license only to have that
application rejected on this point. So, any guidance would be
greatly appreciated. [ATTORNEY]
Example:
Thanks so much. I am not sure if you will be able to
answer this but - you say you would be "concerned" about
the serving of minors or intoxicated people [through self
dispensing machines].… So the question is - Would we
ever be denied a license or fail a field inspection due only
to concern of something happening?
Second question - regarding to the sale of minors…. Is it
legal to not allow unaccompanied minors into a restaurant?
This could be a way to prevent underage people from
drinking. Or the use of stamps when people come into the
establishment…
I will follow up with legal counsel but if you have answers to
the above questions I would appreciate a response :)
I will also follow up with our local state enforcement officer
- who I believe is ___________ [Person]
These are the hardest type of questions as they are
often asked by industry members wanting to comply
with the law, but they are unable to determine the law.
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The law is sometimes unclear.
A Kentucky Supreme Court Justice once described
the Kentucky alcoholic beverage statutes as “a maze
of obscure statutory language,” which were “confusing
at best,” and whose meaning was “anybody’s guess.”
Howard v. Salyer, 695 S.W.2d 420, 427 (Ky. 1985).
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This is problematic when an industry member must
make substantial financial investments dependant
upon the law.
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Authority to issue an opinion on the legality of an
activity rests with the Kentucky Attorney General, not
the Department. KRS 15.025.
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Department cannot expand upon, or limit, a statute
or administrative regulation, by use of an internal
policy, memorandum, or other form of action (email?).
KRS 13A.130(1)(b).
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Any administrative body memorandum, internal
policy, or other form of action violative of this section or
the spirit thereof is null, void, and unenforceable. KRS
13A.130(2).
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Does the agency with statutory duty to enforce laws have
an obligation to give legal interpretation opinions if
legitimate question asked?
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Licenses are issued by Distilled Sprits and Malt Beverage
Administrator, so they are often the ultimate adjudicator of
mixed questions of law and fact regarding license issuance.
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If Administrators disagree with state attorney’s opinion, is
the state attorney subject to negligence or liability claim if
applicant invested substantial sums of money in reliance on
opinion?
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What attorney conflict or other potential ethic issues are
implicated?
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Many requests for legal opinions involve
“dueling” interpretations by different industry
groups.
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Most requests for legal opinions have far
greater impact on other statutes and
Department policies than requestor realizes
or appreciates.
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All state emails are subject to Open Record
Requests. (Kentucky equivalent to Freedom
of Information Act requests.). Any expressed
opinion is open for the world to see.
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Email disclaimer:
“Any opinions of the author expressed in this
email do not constitute policy of the Department,
Kentucky Alcoholic Beverage Control Board, or
controlling law. Information provided in this email
is not legal advice, should not be relied upon as
legal advice, and does not create an attorneyclient relationship between the sender and
recipient.”