Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
241.020,
241.060
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
241.060(1) authorizes the
board to promulgate administrative regulations governing procedures relative to
the matters over which the board has jurisdiction.
KRS
241.020(1) authorizes the
department to issue advisory opinions and declaratory rulings related to KRS
Chapters 241 to 244 and the administrative regulations promulgated under those
chapters. This administrative regulation establishes the procedures and
requirements for requesting advisory opinions and the process utilized by the
department in responding to those requests.
Section
1. Definitions.
(1) "Advisory
Opinion" means a ruling by the Department that addresses questions or issues
properly submitted for consideration as required by Sections 2, 3, and 7 of
this administrative regulation.
(2)
"Department" is the Department of Alcoholic Beverage Control as defined by
KRS
241.010(21).
(3) "Person" is defined by
KRS
446.010(33).
Section 2. Request for Advisory
Opinion.
(1) Any person may request, in
writing, an advisory opinion concerning the application and interpretation of
alcoholic beverage control statutes and administrative regulations with regard
to a particular act or transaction that the requestor is taking or plans to
take. Requests presenting a general question of interpretation, posing a
hypothetical situation, involving the activities of third parties, or that
implicate the subject of an investigation, pending case, or disciplinary
action, shall not be considered.
(2) The department may issue an advisory
opinion on its own initiative.
Section 3. Form of Request.
(1) The request shall be submitted on the
Advisory Opinion Request Form and contain the following:
(a) A clear and concise statement of all
facts relevant to the request;
(b)
Citation to all applicable and relevant statutes, administrative regulations,
decisions, orders, other written statements of law or interpretation, or any
other persuasive or controlling authority that relates to the
request;
(c) A clear and concise
statement of each and every question to be addressed;
(d) The requestor's proposed response to each
question presented, including a summary of the rationale for the proposed
response;
(e) Any documentation,
research, or other evidence related to the request; and
(f) A statement indicating whether, to the
requestor's knowledge or belief, the requested questions or issues is pending
before, under investigation by, or recently determined by any court of law or
governmental entity.
(2)
The request shall be signed by one (1) or more persons, with each signer's
mailing address, telephone number, and email address clearly indicated. If a
person signs on behalf of a corporation, limited liability company,
association, or any other legal entity, the name of the entity, the address,
telephone number, and email address of the entity or point of contact shall be
included. The signer shall date the request.
(3) The request shall be submitted by mail or
by email to the Commissioner of the Department of Alcoholic Beverage Control,
1003 Twilight Trail, Frankfort, Kentucky 40601, email
abc.advisory@ky.gov.
(4) If the
request is deficient under Section 2 or 3 of this administrative regulation,
the requesting person shall be notified of the deficiency within ten (10)
business days of receipt.
(5) If
the request meets the criteria of Sections 2 and 3 of this administrative
regulation, the department shall assign the request an advisory opinion request
(AOR) number and publish the request on the department's Web site.
Section 4. Consideration.
(1) The department may schedule an informal
meeting between the requestor, any interested persons, and department
representatives to present information and discuss questions raised. A final
decision shall not be made at an informal meeting.
(2) In rendering an advisory opinion, the
department shall consider:
(a) All material
submitted with the request; and
(b)
Comments received in accordance with Section 6 of this administrative
regulation.
(3) In
rendering an advisory opinion, the department may:
(a) Consult experts or other individuals with
knowledge of the substance of the request;
(b) Require verification of information;
and
(c) Request additional
documentation from the requestor.
Section 5. Issuance or Refusal to Issue an
Opinion. The department shall issue an advisory opinion within ninety (90) days
after receipt of the request, unless one (1) of the following applies:
(1) Lack of jurisdiction over any of the
questions or issues presented by the request;
(2) Any of the questions or issues presented
are pending before a board, governmental entity, or court of law that may
definitively decide the questions or issues;
(3) Any of the questions presented by the
request would be more appropriately resolved in a different proceeding or
forum;
(4) Any of the facts or
questions presented in the request are unclear, overbroad, insufficient, or
otherwise inappropriate;
(5) Any of
the questions or issues raised in the request become moot;
(6) The request seeks a determination of the
constitutionality of a statute, administrative regulation, or
practice;
(7) Issuance of an
opinion will not be in the public interest; or
(8) The department extends the time period to
issue advisory opinion.
Section
6. Written Comments on Request.
(1) Any interested person or party may submit
written comments concerning a request for an advisory opinion by using the
Advisory Opinion Request Form and identifying the AOR number associated with
the request.
(2) Written comments
shall be submitted by mail or email in the manner outlined in Section 3 of this
administrative regulation no later than fourteen (14) business days following
the date the request is made public by the department.
(3) The department may extend the written
comment period.
Section
7. Reconsideration.
(1) The
department may revise any advisory opinion if circumstances warrant a revision.
In doing so, the department shall issue a revised opinion in accordance with
Sections 2 through 6 of this administrative regulation, including an
explanation of the rationale for the change or revision of the original
opinion.
(2) Any person may request
the department to reconsider or revise a advisory opinion using the Advisory
Opinion Request Form that identifies the AOR number associated with the
advisory opinion.
(3) The request
for reconsideration shall be submitted by mail or email in the manner outlined
in Section 3 of this administrative regulation no later than ten (10) business
days following the publication of the opinion and contain the following:
(a) A clear and concise statement of the
grounds for the reconsideration request;
(b) The proposed conclusion with a summary of
the rationale supporting the proposed conclusion;
(c) Any statute, administrative regulation,
document, order, or other statement of law or policy that supports the
requested reconsideration with an explanation of the relevance of the material
offered; and
(d) A statement of
adverse impact, if any, resulting from the published advisory
opinion.
Section
8. Publication of Advisory Opinions.
(1) All advisory opinions shall be public.
The department shall publish and maintain all advisory opinions. Publication
shall be made by making a hard copy available for inspection and by placing the
entire opinion on the department's Web site.
(2) An index of all final published advisory
opinions shall be maintained by the Department. The index shall include the
subject of each opinion, its publication date, and any changes effectuated by
the opinion.
Section 9.
Incorporation by Reference.
(1) "Advisory
Opinion Request Form", June 2017, is incorporated by reference.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Kentucky Department of
Alcoholic Beverage Control, 500 Mero St 2NE33, Frankfort, Kentucky 40601,
Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on
the department's Web site,
http://www.abc.ky.gov/.
STATUTORY AUTHORITY:
KRS
241.020(1),
241.060(1)