Up for interpretation: Berea City Council argues legalities while discussing prohibition ordinance

Apr. 17—Berea City Council once again discussed Ordinance #10-2024 — Prohibition of Alcohol Sales on City Owned Property, leading to council members debating the legalities of the matter.

Up for interpretation

Councilperson Teresa Scenters began the council's discourse by referencing KRS 222.202.

However, Scenters only referenced the second half of the statute, which states, "A person is guilty of drinking alcoholic beverages in a public place when he drinks an alcoholic beverage in a public place, or in or upon any passenger coach, or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, or waiting room."

"I just think that alone should give us a reason to pass this legislation," she remarked.

The complete statute actually reads as follows:

Offenses of alcohol intoxication or drinking alcoholic beverages in a public place.

(1) A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.

(2) A person is guilty of drinking alcoholic beverages in a public place when he drinks an alcoholic beverage in a public place, or in or upon any passenger coach, or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, or waiting room.

Online resources from Baldwin Law Group, a Lexington-based law firm, explain that it is illegal to be obviously intoxicated by alcohol and/or drugs in a public place and engage in certain behaviors, under Kentucky law.

The firm's website further clarifies, "Specifically, if you are so drunk or high that you are a danger to yourself, other people, or property, or if you are unreasonably annoying, you may be charged with public intoxication."

The law firm asserts that, under this statute, one cannot be charged with a crime for simply being drunk or high in public

The law firm says, "You can only be charged with these crimes if you are manifestly (obviously) intoxicated to such an extent that you (1) endanger yourself or others; (2) endanger property; or (3) unreasonably annoy others."

Berea Police Chief Jason Hays also stated that the definition of public place may not correctly be enforced under the proposed statute.

"The definition shall not include any public place where license under KRS 243 to sell distilled spirits, wine, or beer by the drink that has been obtained. So it's saying if you have a license sell that that doesn't pertain to that chapter," he said.

'Bad policy'

Councilperson Steve Caudill moved to table the ordinance, stating that research revealed that the city does not own the park annex, nor Memorial Park, leaving enforcement of this ordinance only to "the park proper," which Caudill labeled as being the football stadium, the baseball fields, the MUSA field, the softball/tee ball field, and the pool.

The council member noted that Memorial Park and the park expansion are technically managed by the city based on "an understanding" and a 99-year lease from Berea College, respectively.

Caudill feels as if the limited enforcement areas, including around the Tolle building and by the train depot, did not meet the desired effect of the original ordinance.

"By definition, they're not city-owned properties. Therefore, I'm not sure that we can create more stringent laws around ABC guidelines than our already existing because they are one of the few examples of complete sets of laws that have been decided in every court case about home rule in the last 50 years," he said.

Councilmember Jerry Little immediately moved to add language reflecting enforcement of the prohibition ordinance on the city's leased properties as well.

Caudill retorted, "I don't think that we can enforce that. I think that again, if you look at all the case law about home rule in the state of Kentucky, there are two areas that you don't get to vote on, and it's ABC laws and firearm laws...I think that we're just setting ourselves up to have a lot of problems."

Caudill's motion to table the matter was voted down, so the council moved to amend the ordinance with Little's suggestion, which was seconded by Cora Jane Wilson.

Caudill again asserted that the council needs further counsel from the city's attorney, saying that moving forward without it would be making "bad policy," as they were currently unsure of the legalities of creating an ordinance dictating alcohol sales for the land they do not own.

Little commented, "I'm no attorney, but I would think if you've got a 99-year lease on something you can totally control it."

City Attorney Jerry Gilbert replied, "It would depend upon the terms of the lease."

The amendment passed with Little, Wilson, Scenters, and Ronnie Terrill voting yes and Caudill, Katie Startzman, and Jim Davis voting against.

This brought the council back to the original motion, to vote on the ordinance, now with the amended language.

Caudill said he liked this version "even less" due to the outstanding questions and lack of answers.

"We're talking about things that are opinion and emotion and we don't know the answer to this...That's bad policy creation," he said, adding that he would vote yes to a prohibition ordinance for the aforementioned spaces the city owns.

Little then made a motion to table the ordinance until the council receives further legal advice from the city attorney.

"I'm against alcohol on city property. Okay. I'm going to vote no, but if we're doing something illegal up here, if we're making an illegal vote, we need to know," he explained. "I don't see what's wrong with with getting a legal opinion on it and then we come back."

Councilperson Startzman took a moment to express her frustration, comparing Scenters's initial reference to KRS 222.202 to "pulling Bible verses out of context to suit your will."

"The key part in any KRS statute is all of the definitions before it, and I think that's what Chief Hayes was getting at is that the definitions in this section of KRS kind of negate this argument. This KRS statute has nothing to do with the issue at hand...We're going to be spending hours and hours more of the taxpayers' time and money to be dealing with this," she said.

The council unanimously voted to table the ordinance and seek further information from the city attorney.

Mayor Bruce Fraley said, "I think it would be a worthwhile exercise to discuss this in a work session prior to bringing it back to the floor."