KENTUCKY ALCOHOLIC BEVERAGE CONTROL BOARD
In the matter of:
Black Jack Bar-N-Cue, Inc. ) Case No. 04-ABC-247
DBA Black Jack Bar-N-Cue )
4828 Raywick Road ) 078-RD-2277
Raywick, KY 40060 ) 078-B-7393
****** ***** ***** ***** *****
This case was brought on for hearing before the Kentucky Alcoholic Beverage Control Board on April 12, 2005, pursuant to Orders directing the Licensee to show cause, if any it could, why its alcoholic beverage licenses should not be suspended or revoked because of alleged violations of: (1) KRS 244.290 (3)(a) and 804 KAR 7:030, Remaining Open or Selling Distilled Spirits or Wine after Midnight; (2) KRS 244.085(6), Minors on Premises, Two hundred (200) counts; (3) KRS 244.080(1), Sale or Permitted Delivery to a Minor; (4) KRS 244.080(2), Sale to an Intoxicated Person; (5) KRS 244.360 and 804 KAR 7:050, Failure to Print License Name and Number; (6) KRS 244.083, Failure to Post Warning to Minor Sign; (7) KRS 243.895, Failure to Post Pregnancy Warning Sign; (8) KRS 244.120, Disorderly Premises; (9) 804 KAR 9:010, Section 2 (4)(b), Failure to Maintain a Minimum Seating Capacity; (10) KRS 243.390(2), Failure to Notify Of Change In Application.
The hearing was held with the full Board present, Malt Beverage Administrator John Barton presiding. Notice of hearing was mailed by certified mail and signed for by Mr. Francis E. Riggs, Process Agent and President of the Licensee corporation. Notice of hearing was also mailed by Certified Mail and signed for by the Hon. Candace Engle-Gray. Despite said notice, no officer or representative of the Licensee voluntarily appeared at the hearing. The Hon. David W. Barr represented the Office of Alcoholic Beverage Control (hereinafter “Office”).
Based upon the testimony and evidence presented at the hearing, the record herein, having considered the arguments, and being otherwise sufficiently advised, the Board, pursuant to KRS 243.550, hereby makes the following findings:
The Licensee, Black Jack Bar-N-Cue, Inc., d/b/a, Black Jack Bar-N-Cue (hereinafter “Black Jack”), holds a Restaurant Drink License and a Retail Beer License, and is located at 4828 Raywick Road, Raywick, Kentucky. Black Jack operates as a nightclub/bar with very limited (lunch) food service.
On June 4, 2004, at 11:40 p.m., ABC Investigators Steve Newell, Loren Wells and Mark Roney arrived at Black Jack to investigate a complaint of minors drinking alcoholic beverages on the premises and after hour’s sales of alcoholic beverages to minors. Upon arrival, the Investigators observed a large number of young-looking patrons standing and sitting in parked cars in the parking lot drinking alcoholic beverages. A line had formed on the outside of Black Jack and they joined the line in order to enter the premises. Several of the people waiting in line appeared young and several were drinking alcoholic beverages. When the Investigators reached the door to the premises, Black Jack employees were collecting a $5.00 cover charge and marking hands of persons under 21 years of age with a black “X” made by a marker pen. Persons over 21 received a wrist bracelet. The investigators paid the $5.00 cover charge and entered the premises. Investigator Roney identified Kathleen Cecil, as the employee/agent of Black Jack who collected these cover charges. Ms. Cecil is a one-fourth owner of the real estate where the licensed premises are located.
Once inside, the Investigators discovered that the premises were very crowded and observed a large young-looking crowd, around two hundred and fifty (250) people. The majority of the crowd was under 21, mostly 18 or 19 years old. Investigator Newell observed several minors walking around inside the premises drinking alcoholic beverages; a DJ playing very loud music; very few tables and chairs; and, no food being served or eaten.
Investigator Roney began checking ID’s when he noticed a young man in possession of and drinking an alcoholic beverage. Investigator Roney took the man outside because the music was so loud talking was impossible. Once outside, Investigator Roney ascertained the young man was a very intoxicated Juvenile, DOB 8/20/86.
Based upon the testimony and evidence presented, the record and being otherwise sufficiently advised, the Board finds that Black Jack violated KRS 244.080(2), by selling alcoholic beverages to an intoxicated person.
While standing outside the premises’ door, Investigator Roney observed Katrina Gill, DOB 1/14/86, a minor, exiting the building and drinking a Budweiser beer. Ms. Katrina Gill testified that she was eighteen (18) years old on June 5, 2004. Ms. Gill testified that she arrived at Black Jack around 11:00 p.m., was asked for and provided an ID, paid a $5.00 cover charge, had her hand stamped and entered the premises. Investigator Roney criminally charged Ms. Gill with a violation of KRS 244.085(3), Minor not to Possess Alcohol. Ms. Gill entered a guilty plea to the charge in Marion District Court and paid a $234.50 fine. Ms. Gill testified she has been to Black Jack around five to six (5 – 6) times.
Investigator Newell observed two or three transactions occur near the bar where adult patrons approached the bar, purchased alcoholic beverages, and then immediately gave the alcoholic beverages to minors. This occurred in plain view of and in close proximity to employees of Black Jack. Investigator Newell cited Roy B. Curtsinger, DOB 10/26/85, a minor, with Possession of Alcoholic Beverages by a Minor. Mr. Curtsinger pled guilty in Marion District Court and paid a $220.50 fine.
Investigator Wells observed Jonathan N. Votaw go to the bar, purchase two (2) Bud Light beers, and give the beers to a young looking man. Mr. Votaw also purchased a Bacardi O alcoholic beverage and gave it to another young looking man. These transactions occurred in plain view of and in close proximity to employees of Black Jack. Investigator Wells waited several minutes to see if any of the Black Jack personnel would question the young looking men about drinking alcoholic beverages on the premises. When no one approached the men, Investigators Wells exited the premises with Newell to report to waiting ABC investigators outside.
After the Investigators went outside and met with other ABC investigators, five (5) ABC investigators reentered the premises through the front door. Investigators Wells and Newell identified themselves to Mr. Votaw and the two young men, a Juvenile, and Roy B. Curtsinger, a minor, and escorted them outside. Mr. Votaw was charged with two (2) counts unlawful transaction with a minor. Mr. Votaw entered a guilty plea in Marion District Court and paid a $320.50 fine. Mr. Curtsinger was criminally charged with a violation of KRS 244.085(3), Possession of alcoholic beverages by a minor. Mr. Curtsinger entered a plea of guilty in Marion District Court and paid a fine of $220.50.
The Office alleged that Black Jack violated KRS 244.080(1), which provides, in pertinent part:
[A] retail licensee shall not sell, give away, or deliver any alcoholic beverages, or procure or permit any alcoholic beverages to be sold, given away, or delivered to … A minor [.]”
Based, upon the testimony and evidence presented, the record and being otherwise sufficiently advised, the Board finds that Black Jack violated KRS 244.080(1), by permitting minors to possess alcoholic beverages inside the licensed premises.
As previously stated, Investigator Wells observed Mr. Votaw purchase a Bacardi O (and malt beverages) at 12:10 a.m. Investigator Wells further testified that stock of distilled spirits and wine were not locked up after midnight. The local Marion Co. ordinance prohibits alcoholic beverage sales after midnight, although premises are allowed to remain open until 1:00 a.m. Per KRS 244.290(3) and 804 KAR 7:030, Black Jack must stop serving distilled spirits at midnight and must secure its wine and distilled spirits in a separate locked department. Based, upon the testimony and evidence presented, the record and being otherwise sufficiently advised, the Board finds that Black Jack violated KRS 244.290(3) and 804 KAR 7:030.
Investigator Newell testified that he counted twenty-nine (29) chairs at tables. Investigators Wells and Roney assisted in a seat count and they verified that the seat count was twenty-nine (29) chairs at tables. Some of the chairs were not located near tables. Pursuant to 804 KAR 9:010, Section 1 (4)(b), a licensee must maintain a minimum seating capacity of 100 seats at tables in order to hold a Restaurant Drink License. Based, upon the testimony and evidence presented, the record and being otherwise sufficiently advised, the Board finds that Black Jack violated 804 KAR 9:010, Section 2 (4)(b).
Investigator Wells and Roney testified that they did not observe any “warning to minors” signs posted, a sign posted warning of the dangers of drinking alcoholic beverages prior to and during pregnancy, nor were the licensee’s name and license numbers printed on the front of the building. Based, upon the testimony and evidence presented, the record and being otherwise sufficiently advised, the Board finds that Black Jack violated KRS 244.360 and 804 KAR 7:050; KRS 244.083; and KRS 243.895.
The evidence showed that Black Jack had divided and designated a portion of the licensed premised as a restaurant area. Investigator Roney noticed the door between the restaurant and nightclub was locked. Investigator Roney asked both Francis Riggs, President of the Licensee Corporation, and Mr. Robbie Bickett for a key. They both told him they did not have a key and that he would have to go to the outside front of the building to enter the restaurant. The outside door to the restaurant had a sign posted on it that told persons to go to the front of the bar for entrance. Mr. Bickett later produced a key and unlocked the door for Investigator Roney. The kitchen was closed and locked.
Investigator Roney took several pictures of the inside of the premises. The pictures showed a total of fifteen (15) drinking mugs in the kitchen area; an upright freezer in the kitchen with ice cream and a bag of ice inside; a horizontal freezer with a box of packaged hamburger patties; a refrigerator with tomatoes, pickles and small items; approximately one hundred and forty (140) plastic plates; a house-type 4-burner stove; one (1) deep freezer, one (1) deep fryer and Hibachi type grill; a long table with nine (9) chairs inside the restaurant portion; three (3) round tables in the dining facility with two (2) or (3) chairs at the round tables. There were fifteen (15) chairs in the restaurant and fourteen (14) chairs in the nightclub section for a total chair count of twenty-nine (29) chairs.
The Investigators testified that the premises resembled a nightclub/bar instead of a restaurant. No food was being served or eaten. Investigator Roney testified that he has been inside Black Jack on several other occasions and has never seen food served or sold, only customers drinking and dancing.
The Office next alleged that Black Jack violated KRS 244.085(6), which provides, in pertinent part:
[A] licensee, or his or her agent, servant, or employees shall not permit any person under twenty-one (21) years of age to remain on any premises where alcoholic beverages are sold by the drink or consumed on the premises [.]
Pursuant to KRS 13B.090(7), the Office has the burden of proving a violation of this statute. Since it is undisputed that minors were present on the licensed premises on or about December 4, 2004, Black Jack did violate KRS 244.085(6) absent any applicable exception. The burden of proving an exception is with Black Jack.
The Board heard the evidence in this case on the same date that it heard evidence in other cases against Black Jack as follows: (1) Case No. 04-ABC-246 for violations on February 20, 2004; (2) Case No. 05-ABC-032 for violations on December 5, 2004; and (3) Case No. 05-ABC-033 for violations on for violations on December 17, 2004, and January 17, 2005. The Board takes administrative notice of the evidence presented in Case No. 04-ABC-246, Case No. 05-ABC-032, and Case No. 05-ABC-033.
KRS 244.085(6)(a) does provide exceptions and a possible defense to Black Jack. Minors are allowed on the premises if “the usual and customary business of the establishment is a …restaurant.” Id. Evidence shows that on the evening of June 5, 2004, the atmosphere and activities at Black Jack more closely resembled a bar than a restaurant. Patrons were charged a $5.00 cover charge to enter the premises, a practice associated with bars, not restaurants. After paying this fee, patrons under the age of twenty-one (21) years received an “X” on their hand made by a black marker pen and persons over twenty-one (21) years of age received a wrist bracelet. Loud music was played. Minor patrons packed the premises (around 200 to 250, mostly minors). Many patrons were walking, drinking and talking to each other. There were few tables and chairs. No food was sold, served or being eaten by patrons seated at tables, etc. Again, all of these are bar practices and activities.
The Board fully understands and appreciates the legal distinction between whether a business is “a restaurant that sells beer,” or “a bar that sells food.” Although the line separating a bar from a restaurant is sometimes blurry, the legal consequences in alcoholic beverage law are significant. KRS 241.010(37) defines a “restaurant” as:
[A] facility where the usual and customary business is the serving of meals to consumers that has a bona fide kitchen facility, and that receives at least fifty percent (50%) of its gross receipts from the sale of food.
The Board is an administrative agency, and is required to examine a licensee’s business practices to ascertain whether they are a “sham” designed to subvert public policy or to circumvent “regulatory obligations.” See, Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet v. Neace, Ky., 14 S.W.3d 15, 19 (2000).
In Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed. 318 (1969), the United States Supreme Court dealt with a situation where an amusement park did not want to comply with the newly enacted Civil Rights Act of 1964, Title II. In an attempt to avoid the new law, the park began calling itself a “private club” and charged a twenty-five cent ($.25) membership fee to each “member.” For this fee, “members” received a membership card, and were allowed to enter the park. Not surprising, blacks were not allowed to join the “private club.” The Supreme Court held that it was proper to ignore what a business calls itself and to examine the true nature of the business. Based on a review of business operations, the Court held that the conclusion that the park was, “not a private club is plainly correct.” Id., at 302.
In Hendriks v. Commonwealth, Ky., 865 S.W.2d 332 (1993), the Kentucky Supreme Court dealt with a similar issue. In Hendricks, an adult entertainment establishment wanted to avoid a Newport city ordinance, which prohibited public nude dancing, so the business began calling itself a “private club.” A state trooper entered the premises, paid a five dollar ($5.00) cover charge, received a membership card and entered the premises. The Court examined the business practices and determined that the business was not a private club, and that its operational change, “was established for the sole purpose of avoiding the requirements of a newly enacted city ordinance regarding nudity in a public place.” Id., at 335.
In the present case, the Board acknowledges that Black Jack has a kitchen. However, simply having a kitchen does not make a business a restaurant. A reasonable person of ordinary prudence, upon entering an establishment purporting to be a restaurant, would not expect to pay a $5.00 cover charge. Black Jack charged this non-refundable cover charge even if a patron did not eat any food, or did not intend to eat any food. A reasonable person would expect a restaurant to have a minimal menu available, but Black Jack did not have one. A reasonable person would expect a restaurant to have its kitchen open and food cooking. Black Jack’s kitchen was closed and locked. A reasonable person would expect to see most, if not all, restaurant patrons seated and eating at tables. Few patrons were observed sitting at tables, most were milling around the premises, talking and drinking. A reasonable person would not expect a restaurant to permit patrons to dance in steel cages. Black Jack permitted minors to dance in steel cages.
Based, upon the testimony and evidence presented, the record and being otherwise sufficiently advised, the Board finds that Black Jack violated KRS 244.085(6), by allowing minors in the premises. The Board further finds that Black Jack has failed to meet its burden of proving an affirmative defense that it was a restaurant. The Board finds that evidence demonstrates that Black Jack is a bar/nightclub, not a restaurant as defined in KRS 241.010 (37).
Based upon the testimony, evidence and the record herein, and being otherwise sufficiently advised, the Board also finds Black Jack violated KRS 244.120 by allowing the premises to become disorderly. Although one would expect music to be played at a nightclub, premises become disorderly when the volume became so great that normal conversation cannot be heard and a legal investigation cannot be conducted. The volume of the music was unreasonable and hazardous to law enforcement personnel and to patrons.
Lastly, the Board finds the Licensee has violated KRS 243.390 (2), which provides:
If, after a license has been issued, there is a change in any of the facts required to be set forth in the application, a verified supplemental statement in writing giving notice of the change shall be filed with the board within ten (10) days of the change.
Black Jack has a restaurant drink license. Only a restaurant can receive a restaurant drink license. The Board has found herein that the Licensee does not meet the statutory definition of a restaurant (KRS 241.010(37)). As such, the Licensee’s failure to inform the Board that it no longer was a restaurant is a clear violation of KRS 243.390(2), and the Board so finds.
Mr. Robert “Robbie” Wayne Bickett was employed at Black Jack as an Administrative Assistant from February 2004 through August 2004. Mr. Bickett was working at Black Jack on June 5, 2004 but did not recall if Kathleen Cecil was working that evening. Mr. Bickett admitted that when he had worked for Black Jack, he was there every other Friday doing administrative type activities, i.e., payroll. Mr. Bickett owns a one-fourth (1/4th) undivided interest in the real property where the licensed premises are located. On April 11, 2004, Mr. Robbie Bickett came to the Office’s Frankfort office and attempted to surrender the licenses. However, the Board refused said surrender since Mr. Bickett was not an officer of the licensee corporation and surrender was otherwise prohibited by KRS 243.630(9).
The premises located at 4828 Raywick Road in Raywick, Marion County, Kentucky, has quite a history and is well known by the Board. Said premises were originally licensed as Bickett’s Inn, d/b/a Bickett’s, and also held a Restaurant Drink License and a Retail Beer License. The Restaurant Drink License was revoked on March 16, 1998, and Bickett’s failed to renew the beer license in July 1998.
On November 24, 1998, Squire’s, Inc. applied for a retail beer license but then Malt Beverage Administrator Stephen G. Horner denied application based on numerous protest letters received. Squire’s appealed the denial and the Board held a hearing on the appeal. On August 11, 1998, the Board entered a final order in Case No. 98-ABC-104, and Squire’s was granted a beer license with stipulations. Stipulation (3) in Order No. 98-ABC-104 stated “Charlie Bickett, Kathleen Cecil and Robert Wayne Bickett shall not be employed by the applicant, shall have no ownership interest in the applicant nor shall they be involved in the management or business affairs of the applicant in any way, direct or indirectly;”. The reason for this stipulation was that Cecil and Robert Wayne Bickett were listed as Lessors on the Lease that was filed with the application. A retail beer license was issued to Squire’s on November 24, 1998. The president of Squires was Mr. Earl Ray Bickett.
Squires continued the Bickett “family tradition” of violating ABC law. The Board takes administrative notice that in Case No. 01-ABC-285, Squires was charged with violations of KRS 244.080(1), Sales to minors; and, KRS 244.085(6), Minors on Premises - 10 counts. In Case No. 03-ABC-138, Squires was next charged with the following violations: (1) KRS 244.080(1), Sale to a Minor; (2) KRS 244.480, Unauthorized Sunday Sales; (3) KRS 244.085(6), Minor on Premise, three (3) counts; (4) KRS 243.500(4)(b), Two (2) Alcohol-Related Misdemeanor Convictions; and, (5) KRS 243.390(2), Bad Standing. By letter dated August 4, 2003, Mr. Louis Earl Bickett, admitted the violations and physically surrendered its retail beer license to resolve this case under threat of revocation.
Black Jack filed its application for a Restaurant Drink License and a Retail Beer License on April 15, 2004. Robert Wayne Bickett was listed on the Lease, filed with the Office on April 27, 2004, as a Lessor. Relatives of Mr. Bickett have owned, operated, or leased the premises located at 4828 Raywick Road, Raywick, Kentucky since 1998 when the premises was initially licensed for alcoholic beverage sales. Since that time the licensed premises has continued to violate ABC law.
The Board takes administrative notice of the fact that by separate orders of even date, the Board has found as follows:
Case No. 04-ABC-246
On February 20 to 21, 2004, Black Jack committed the following violations: (1) KRS 244.120, Disorderly Premises; (2) KRS 244.085(6), Minors on Premises; and, (3) KRS 244.080(1), Sales or Permitted Delivery to a Minor
Case No. 05-ABC-032
On December 4, 2004, Black Jack committed the following violations: (1) KRS 244.080(1), Sale or Permitted Delivery to a Minor; (2) KRS 244.085(6), Minors on Premises; (3) KRS 243.390(2) Failure to Notify of Change In Application; (4) KRS 244.290(3)(a), Remaining Open and Selling Distilled Spirits or Wine after Midnight; (5) KRS 244.480, Selling Malt Beverages after Midnight; (6) 804 KAR 9:010, Section 2 (4)(b), Failure to Maintain Minimum Seating; and, (7) 804 KAR 9:010, Section 2 (4)(c), Failure to Present Satisfactory Proof as Restaurant.
On December 17, 2004, Black Jack committed the following violations: (1) KRS 244.080(1), Sale or Permitted Delivery to a Minor; (2) KRS 244.085(6), Minors on Premises. Also, on January 7, 2005, Black Jack committed the following violations: (3) KRS 244.080(1), Sale or Permitted Delivery to a Minor; (4) KRS 244.085(6), Minors on Premises; and, (5) KRS 243.390, Failure to Notify of Change in Application.
Given the numerous and repeated violations by Black Jack, the Board believes that Black Jack will continue to violate the alcoholic beverage laws if allowed to keep its licenses. As such, the Board finds that Black Jack’s alcoholic beverage licenses should be revoked.
IT IS, THEREFORE, ORDERED that Restaurant Drink License No. 078-RD-2277 and Retail Beer License No. 078-B-7393, issued to Black Jack Bar-N-Cue, d/b/a, Black Jack Bar-N-Cue, be and are hereby REVOKED, effective the close of business on Tuesday, July 12, 2005.
All final orders of the Board may be appealed to Franklin Circuit Court in accordance with KRS 13B.140(1). To appeal, you should file a petition in Franklin Circuit Court within thirty (30) days after the mailing date of this Final Order. Copies of the petition must be served upon the Office and all parties of record in this proceeding. The petition shall include the names and addresses of all parties of record in this proceeding, including the Office. The petition shall also present a statement of the grounds upon which the review is requested. A copy of this Final Order shall accompany the petition.
SO ORDERED this the _________ day of _______________, 2005.
ALCOHOLIC BEVERAGE CONTROL BOARD
V. LAVOYED HUDGINS
STEVEN A. EDWARDS
DISTILLED SPIRITS ADMINISTRATOR
JOHN C. BARTON
MALT BEVERAGE ADMINISTRATOR
ANGELA F. DONAHUE
Black Jack Bar-N-Cue, Inc.
DBA Black Jack Bar-N-Cue
4828 Raywick Road
Raywick, KY 40060
Frances Edward Riggs, Process Agent
Black Jack Bar-N-Cue, Inc.
4828 Raywick Road
Raywick, KY 40060
David R. Hourigan
County Judge Exec. & ABC Administrator
102 West Main Street
Lebanon, KY 40033
Investigators Roney, Wells, Newell, Hodges, Harlow, Wyatt
 Ms. Engle-Gray notified Hon. Barr, by phone, prior to April 12, 2005, that she would not be present at the hearing to represent the Licensee.
 The premises was licensed previously as Squires, Inc., d/b/a, Bicketts and is still known locally as “Bicketts”.
 Ms. Cecil is listed as a Lessor on the Lease that was filed with Black Jack’s application.
 Although not cited in this case, Black Jack further violated KRS 244.480 by selling malt beverages after midnight.
 An affirmative defense is one in which a party seeks to avoid liability or guilt on some ground recognized by law. See, CR 8.05. A defense proceeding by way of confession and avoidance is an affirmative defense. Chaney v. Slone, Ky., 345 S.W.2d 484, 486 (1961). Where a statute prohibits certain conduct, but also contains an exception, which excuses or justifies the prohibited conduct, the listed statutory exception is considered an affirmative defense. Smith v. Sizemore, Ky., 300 S.W.2d 225, 228 (1957)(word “unless” creating exception); Banner Transfer Co. v. Morse, Ky., 274 S.W.2d 380, 381 (1954)(words “shall not apply” creating exception); Shamrock Coal Co. v. Taylor, Ky. App., 697 S.W.2d 952, 954 (1985).
 By Board Order No. 98-ABC-104, entered August 11, 1998, the board issued a retail beer license to Squire’s, Inc., 4828 Raywick Road, Raywick, Kentucky. In that Order, stipulation number 3 stated: “Charlie Bickett, Kathleen Cecil and Robert Wayne Bickett shall not be employed by the applicant, shall have no ownership interest in the applicant nor shall they be involved in the management or business affairs of the applicant in any way, direct or indirect;.. .”
 Deed, filed February 18, 2008, in Marion County. Mr. Bickett and his wife, Melissa Cecil, each acquired a one-fourth (1/4th) undivided interest. Kathleen Cecil and Daniel Cecil, her husband, also each acquired a one-fourth (1/4th) undivided interest.