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(A) Permit required. No person shall operate or maintain a business enterprise permitting the sale, exchange or transfer of distilled spirits, wine or malt beverages between the hours of 1:00 a.m. and 2:30 a.m. without first obtaining a 2:30 a.m. permit from the city’s Alcoholic Beverage Control Board (ABC Board).
(B) Eligibility and qualifications of holder and grandfather clause.
(1) All applications for a 2:30 a.m. permit shall be in writing and made directly to the City Administrator or his or her designee. The City Administrator shall request a background check and criminal history from the Chief of Police or his or her Police Department designee with respect to the considered applicant’s eligibility and the written certification of approval from the Zoning Administrator.
(2) To be eligible for a 2:30 a.m. permit, the applicant must have a current and valid city and state alcoholic beverage license of one or more of the following types:
(a) Quota retail drink license;
(b) Non-quota Type 1 retail drink license (NQ1);
(c) Non-quota Type 2 retail drink license (NQ2);
(d) Non-quota Type 3 retail drink license (NQ3); or
(e) Non-quota Type 4 retail malt beverage drink license (NQ4).
(3) Package retail sales licensees, unless the licensee also has a valid city and state license of the types listed in division (B)(2) above shall not be eligible for a 2:30 a.m. permit.
(4) All taxes, fines, outstanding liens, fees and license charges in connection with the applicant’s business enterprise due the city, including annual minimum occupational license, must be paid before an applicant shall be considered. Additionally, if the applicant is the recipient of any loan granted or administered by the city, all payments or obligations concerning the loan(s) must be current at the time the application is submitted. However, if there is a member, officer, shareholder or partner of an entity that is an applicant who is in default of an obligation as indicated above, the entity not in default shall not be denied the right to submit an application.
(5) Effective on the passage of this section, no new permit shall be issued without the written certification of the Zoning Administrator on the application that the proposed site requesting issuance of the permit does not abut a residential use in a residential zone, has sufficient customer parking available in the zone where it is located without impacting adjacent zones, and is located within one of the following zones:
(a) Central Business District (CBD);
(b) Commercial-General (CG);
(c) Commercial-Tourist (CT);
(d) Commercial-Community (CC);
(e) Resource Protection (RP), but only when adjacent to a commercial, office or industrial zone;
(f) Commercial-Neighborhood (CN);
(g) Commercial-Office (CO);
(h) Commercial-Riverfront (General) (CRG); and
(i) Commercial-Riverfront (Limited) (CRL).
(6) No applicant shall be granted a 2:30 a.m. permit who has been convicted of any felony within the last five years or misdemeanor relating to the use of alcoholic beverages within two years prior to submission of application or otherwise is in violation of the provisions of KRS 243.100 et seq.
(7) No applicant shall be granted a 2:30 a.m. permit unless the person is an actual resident of the state or a corporation licensed to do business within the commonwealth.
(8) Persons holding permits prior to the enactment of this section and also those businesses holding a liquor by the drink license and located in the area annexed to the city by Ord. O-47-76, adopted 6-10-1976, shall be granted the privilege of continued operation without regard to the zoning requirements of division (B)(5) above. All future transfers of existing nightclub permits at the same location will be honored if the transfers comply with the conditions and regulations listed in this section.
(C) Permit fee. The fee for a 2:30 a.m. permit shall be $5,000 per year, payable on or before February 1 of each year. If a permittee in good standing is approved by the ABC Board to transfer his or her permit to a new permittee at the same location during the license year, there shall be no additional fee assessed for that license year.
(D) Proration of fees. Fees collected for the purchase of 2:30 a.m. permits shall be due and prorated on a monthly basis if the application is received and awarded during the license year.
(E) Disposition of revenue. The proceeds of the permit fees collected under this section shall be deposited in the city’s General Fund Account.
(F) Information. All applications and permits issued pursuant to the provisions of this section shall contain the following:
(1) Name, address, telephone number and email address of applicant (including all officers, stockholders of small corporations (two or fewer stockholders), members of a limited liability company and/or partner(s);
(2) Number of the permit;
(3) Type of permit;
(4) Street address of the premises which holds the permit;
(5) The name and address of the owner of the building in which the permit is located;
(6) The expiration date of the permit; and
(7) A statement that the permit shall not be a property right, and that it may be revoked or suspended at any time, pursuant to the law.
(G) Conditions of permit. All permits issued pursuant to this section shall be accepted by the applicant subject to the following.
(1) The premises shall be subject to the entry of police, City Administrator, law enforcement officers or other duly authorized representatives of the city at all reasonable hours for the purposes of inspection and at all times during the operation of the premises.
(2) The licensed premises shall, at all times, be conducted in an orderly manner and no indecent or criminal conduct shall be allowed at any time, nor shall violations of any law be permitted thereon.
(3) No spirituous, vinous or malt liquors shall be sold or dispensed to any minor.
(4) No licensee shall sell, give away, furnish or permit to be consumed on the premises any alcoholic beverages between the hours of 2:30 a.m. and 6:00 a.m., or at any time during the hours of a Sunday after 2:30 a.m. (unless the applicant has obtained a special Sunday retail drink license that allows for sale to begin at 11:00 a.m. on Sunday). During the time periods referred to herein, no person shall be present on the premises of the establishment licensed for the sale of alcoholic beverages, except the owner or his or her authorized employees, contractors and agents.
(5) The licensee shall not violate any provisions of the laws or ordinances of the United States, the state or the city pertaining to alcoholic beverages, their regulation and control.
(H) Specific regulations for 2:30 a.m. permit holders.
(1) No live entertainment shall be permitted after 11:00 p.m. on Sunday through Thursday, or after 1:00 a.m. on Friday and Saturday for those establishments located in a residential zone.
(2) All 2:30 a.m. permit holders shall make every reasonable effort to arrange for orderly closing of the establishment, including, but not limited to, instructions to customers that they should depart the premises in a quiet and orderly fashion.
(3) All 2:30 a.m. permit holders shall regulate noise levels to assure that noises emanating from the establishment do not disturb the surrounding residents.
(4) All 2:30 a.m. permit holders shall comply with all city Building and Zoning Codes, including the statewide Building Code, the city’s sign regulations and city nuisance and property maintenance codes and all alcoholic beverage control ordinances, statutes and regulations.
(5) Compliance with any additional reasonable requirements set by the ABC Board as a condition of the applicant receiving a 2:30 a.m. permit. The ABC Board may impose reasonable conditions and/or restrictions related to the use and operation the premises after 1:00 a.m. based on the circumstances and operations of the premises such as the volume of traffic, the nature of the neighborhood where the premises are located, the number of patrons, whether live or recorded music is played, and so forth. These conditions and/or restrictions may be in addition to any conditions imposed by the Board of Adjustment if a conditional use requirement is required for the use of the premises. The ABC Board’s conditions and/or restrictions will be limited to the hours between 1:00 a.m. and 2:30 a.m. They include, but are not limited to: requiring seating in the rear of the premises or in a restricted area or in an enclosed area installation of fencing or landscaping to act as a barrier; requiring the closure of windows; requiring security measures to be provided by the establishment; requiring the business to restrict outdoor seating after 1:00 a.m.; and/or that no amplified music be allowed outside after 1:00 a.m.
(6) Any suspension or revocation of the 2:30 a.m. permit holder’s regular city or state liquor by the drink license shall result in a suspension or revocation of the holder’s 2:30 a.m. permit for the same time period.
(I) Hearing provision.
(1) There is hereby established a City Alcoholic Beverage Control Board (ABC Board) consisting of the Police Chief, the City Manager or his or her designee and a citizen of the city. The citizen of the city shall be appointed by the Mayor with the approval of the Board of Commissioners for a three-year renewable term.
(2) The ABC Board shall conduct a public hearing regarding all new and transferred 2:30 a.m. permit applications and certain renewal applications as specified in divisions (I)(6) and (I)(7) below. The City Clerk shall post notice of any meeting of the city’s ABC Board at least 24 hours before the meeting takes place. For all hearings regarding new or transferred 2:30 a.m. permits, the City Administrator shall mail written notice of the hearing no less than seven days prior to the hearing to all properties abutting the premises for which the permit is to be issued.
(3) The City Administrator, the City Solicitor or the City Solicitor’s designee shall represent the city at any and all hearings before the ABC Board. The City Administrator shall present evidence gathered in support or disapproval of the 2:30 a.m. permit application or renewal and make his or her recommendation to the ABC Board. It will also be the responsibility the City Administrator to investigate complaints and/or allegations of violations of this or other city, state or federal alcoholic beverage control laws by a 2:30 a.m. permit holder and to present his or her findings to the ABC Board.
(4) The ABC Board shall consider the recommendation of the City Administrator and all evidence presented. The Board shall render a decision either approving, approving with conditions or disapproving the application or renewal of a 2:30 a.m. permit. If the application or renewal is disapproved, the ABC Board shall list the reason(s) for such a denial. In addition to the conditions and regulations previously listed, the Board may deny or suspend the 2:30 a.m. permit application or renewal for any of the follow reasons:
(a) The applicant is not in compliance with the terms and conditions of divisions (B), (G) and/or (H) above;
(b) The establishment abuts a church, school or abuts an accessory use of the church or school, and the applicant has not gained the written consent of the church or school;
(c) The applicant is a sexually-oriented business and has not obtained a sexually-oriented business license;
(d) An excessive amount of police calls involving excessive noise, disruptive or illegal conduct at the applicant’s establishment. Excessive means three or more calls concerning separate, unrelated incidents that are documented by a law enforcement agency; or
(e) Any arrest and conviction for prostitution or drug activity occurring on the applicant’s premises within the last three years.
(5) If the city’s ABC Board approves a 2:30 a.m. permit with conditions, the City Administrator and the city’s Police Department shall have the power to conduct periodic checks to ensure that the applicant is in compliance.
(6) The ABC Board shall have the responsibility for investigating and hearing complaints regarding 2:30 a.m. permit holders and it shall have the authority to levy fines up to $500 per violation or suspend or revoke a 2:30 a.m. permit where it finds violations of this section or other applicable beverage control laws. The ABC Board may allow a 2:30 a.m. permittee to continue to operate subject to conditions. The ABC Board may conduct hearings upon verified complaints from citizens or upon its own motion, or on complaints received by the City Administrator, police officers or other enforcement personnel regarding the violation of law by a 2:30 a.m. permit holder.
(7) The City Administrator shall conduct an annual review before the renewal of any 2:30 a.m. permit and if it is determined that probable cause exists that the 2:30 a.m. permit holder is in violation of regulations established by this section or other city, state or federal law, then the City Administrator shall present a recommendation to the ABC Board to deny or suspend the 2:30 a.m. permit that is up for renewal. The ABC Board shall hold a hearing and render a decision on whether the 2:30 a.m. permit renewal application should be denied, suspended, renewed or renewed with conditions.
(8) The 2:30 a.m. permit holder will have the opportunity to present evidence in his or her own defense at any hearings conducted by the ABC Board and shall have the right to be represented by an attorney at law, and the proceeding shall be mechanically or stenographically recorded. Any party desiring to have a court reporter shall be responsible for the cost of the court reporter.
(9) The 2:30 a.m. permit holder or the complainant may appeal the decision of the ABC Board to the Board of Commissioners by filing a notice of appeal with the City Clerk within ten days of the date of the written decision of the ABC Board.
(a) The appellant shall be responsible for having the mechanically recorded transcript typed and submitted to the City Clerk within 30 days of the date of the notice of appeal. Five copies of the typed transcript as well as any other written memoranda shall be submitted by the appellant to the City Clerk for forwarding to the Mayor and Board of Commissioners no later than 45 days from the date of the notice of appeal.
(b) The appellee shall have 15 days from the date of the filing of the appellant’s transcript and memoranda to file a reply brief or any other argument in response to appellant’s brief.
(c) The Mayor and Board of Commissioners may affirm, deny, amend or remand the findings of the ABC Board based upon the transcript and the written memoranda of appellant and appellee. In addition, it shall be discretionary with the Mayor and Board of Commissioners as to whether oral arguments will be permitted to aid the Mayor and Board of Commissioners in reaching their decision.
(d) The findings of the Mayor and Board of Commissioners shall be reduced to writing and their decision shall be appealable to the County Circuit Court.
(1) An individual holding a 2:30 a.m. permit may transfer that permit to a new location which he or she will own and operate, if it falls within the acceptable zones previously listed in division (B)(5) above.
(2) Whenever transfer to a different transferee is proposed at the same location, the 2:30 a.m. permit may be transferred if the location is in a zone listed in division (B)(5) above, and if the transferee is granted approval by the ABC Board after following the application steps listed in this section.
(3) When a 2:30 a.m. permit holder in any zone except those listed in division (B)(5) above, transfers the business to a new owner, the 2:30 a.m. permit may be transferred subject to the approval of the ABC Board after following the application steps listed in this section.
(K) State approval. Whenever an applicant to obtain or transfer a 2:30 a.m. permit has obtained city approval for a city alcoholic beverage license and is awaiting approval of a state alcoholic beverage license, and is operating validly under another state alcoholic beverage license, the applicant may operate under the newly obtained or transferred 2:30 a.m. permit while awaiting state approval.
(1984 Code, § 111.032) (Ord. O-6-82, passed 2-2-1982; Ord. O-18-84, passed 3-13-1984; Ord. O-28-84, passed 5-8-1984; Ord. O-32-85, passed 6-11-1985; Ord. O-85-85, passed 12-3-1985; Ord. O-71-88, passed 8-24-1988; Ord. O-7-89, passed 1-31-1989; Ord. O-37-91, passed 7-23-1991; Ord. O-34-92, passed 8-29-1992; Ord. O-30-98, passed 6-25-1998; Ord. O-4-08, passed 1-29-2008; Ord. O-36-13, passed 10-22-2013) Penalty, see § 112.99