Liquor Barn will remain open on Shelbyville Road — at least for the time being.
Owner Rob Rosenstein and his attorney have filed an appeal with the Franklin County Circuit Court to overturn the Kentucky Alcohol and Beverage Control Board ruling that states Liquor Barn must close its doors on Shelbyville Road by the end of the month.
Liquor Barn’s across-the-road neighbor in St. Matthews, Beverage Warehouse, brought the case before the ABC Board because the competitor had opened within 700 feet. That’s a violation of a 60-year-old law — KRS 241.075, if you’re hanging around a law library.
The basis for the appeal brought by Liquor Barn’s attorney, Ken Handmaker of Middleton Reutlinger, is that the ruling is arbitrary and not supported by the evidence.
Specifically, Handmaker says the 700-foot law doesn’t apply in this case because the wording of the statute specifically refers to “the shortest pedestrian route.”
That’s pedestrian route, not as-the-crow-flies route.
In this case, U.S. 60/Shelbyville Road is one of the busiest urban traffic corridors in the state, seven lanes of practically nonstop cars, trucks and buses. To walk safely — and, by the way, legally — from one store to the other, you’d have to walk to a nearby stoplight, cross the street, and then walk back to the other store — way more than 700 feet.
It’s not clear, Handmaker says, why the law, written in 1954, refers specifically to pedestrian traffic. “We did have cars in 1954,” he notes, dryly.
Besides, he argues, his client spent $4 million to acquire the property and more than $1 million to renovate it only after getting the approval of the City of St. Matthews, the City of Louisville, and the state.
In other words, the people who administer these laws read his application for license and said, “sure, no problem.”
Neither the attorney representing Beverage House nor the City of St. Matthews’ lawyer responded to requests to be interviewed for this story.
Of the ABC Board’s ruling, Handmaker says, “Their ruling was arbitrary, oppressive and prejudicial, and they don’t have the facts right.”
Among other things, he says, the board members hearing the case went to St. Matthews and actually walked the distance between the two stores — even walking across seven lanes of traffic — which is a strict no-no.
“The ABC board impermissibly developed its own evidence by personal investigation to support the final order,” is the wording in the appeal.
“It is prohibited to act in an investigative capacity, and then also act as a hearing decision-maker,” Handmaker reiterates.
In addition, he says the board’s ruling ignored the testimony of Liquor Barn’s expert witness, Louisville land engineer Steve Russi.
“We used, as expert, one of the leading traffic engineers and road construction people in Louisville,” Handmaker contends. But in their ruling, he says, the board disregarded Russi’s testimony, as well as various other exhibits the attorney presented at the hearing.
One of the things that really baffles Handmaker — a specialist in administrative law in the field of alcoholic beverage regulation — is that he won a nearly identical case five years ago, representing Molly Malone’s on Baxter Avenue against Wet Willie’s. “The Kentucky ABC ruled in my favor, and so did the state Supreme Court,” the lawyer said. “And that was on a road with just two lanes of traffic.”
Following the filing of the appeal, the state has to provide all its records and evidence, and then a briefing schedule is requested, a process that could take up to a year.
Until then, Handmaker says, Liquor Barn is free to do business as usual, “as far as our attorneys are concerned.”
And if he doesn’t get satisfaction on this appeal, he’s prepared to take it to the state Court of Appeals, the Kentucky Supreme Court, and even the U.S. Supreme Court: “We think there are federal issues.”