dissenting.
I respectfully dissent because the majority opinion totally misapplies and misinterprets the law of Kentucky. The true question is misunderstood by the majority.
The real issues are 1) whether the City of Newport can enact an ordinance setting a limit on the number of malt beverage licenses for its territory in the absence of any state limit, and 2) whether the City of Newport is compelled to issue a license authorizing Bravard to operate in the City.
KRS 82.082 clearly provides that a city may exercise any power and perform any function within its boundaries that is in the furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute. The only logical result is that the quota on liquor licenses issued by Newport are valid unless they are in conflict with a constitutional provision. There is no conflict in this case because there is no state limit.
Prior to the enactment of KRS 82.082 in 1980, the statute authorizing city licenses, KRS 243.070 had been interpreted as authorizing quotas on the number of city *725licenses, Deckert, supra, as well as other restrictions such as the nature of the licensed premises, City of Bowling Green v. Gasoline Marketers Inc., Ky. 539 S.W.2d 281 (1976), and the hours of operation, City of Newport v. Tye, Ky. 835 S.W.2d 340 (1960). The position of Newport is not that the power to regulate licenses is conferred by KRS 243.070. The argument as I interpret it is that this statute does not prevent the city from imposing a regulation or establish a conflict of laws. It is the majority that stretches the language or inaction of the State Board to permit unlimited beverage licensing in cities. In this situation, we have a void and a total inaction by the state regulatory authorities. Until action is taken by those who are charged with such responsibility, there is nothing in the law to prevent local communities from protecting their citizens by such regulations. There is no contention that the Commonwealth may override a local quota when it desires and it may grant “state” liquor licenses. It does not necessarily follow that a City has to follow suit. Practically, the State Board has control over this situation when and if it acts, however, in the absence of the Board’s action as in this case, the city may act in a manner it believes necessary and in its overall best interest.
KRS 241.060(2) authorizes the State Alcoholic Beverage Control Board to fix limits on the number of licenses and the type of locations where licenses will be permitted throughout various districts in the state. There is nothing in the language of this statute which expressly or impliedly prohibits a city from establishing limits on the number of alcoholic beverage licenses within its jurisdiction.
KRS 243.070 specifically authorizes cities to impose license fees and issue licenses which correspond to licenses authorized by the state. The only limitation is on the maximum amount of fee.
KRS 82.082(1) provides that a city may exercise any power and perform any function within its boundaries that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute. Subsection (2) further provides that a power or function is in conflict with a statute if it is expressly prohibited by statute or there is a comprehensive program of legislation on the same general subject embodied in the statutes.
The Alcoholic Beverage Control Board has not established any limits for the City of Newport. Consequently it cannot be logically argued that the Newport ordinance is in direct conflict with the state statute or any constitutional provision.
Cities of the second class, such as Newport, have the authority to adopt ordinances and regulations which are not in conflict with or inconsistent with state statutes. The cities can adopt laws which are more restrictive than the state statute when there is no particular plan provided for by state regulation.
Deckert v. Levy, 308 Ky. 67, 213 S.W.2d 431 (1948), is directly in point. Deckert, supra, held that the power to issue alcoholic beverage licenses by cities pursuant to KRS 243.070 included the authority to limit the number of retail beer licenses within the municipality. In Deckert, the state had not established any limitation on the number of licenses to be issued in that area. The same is true in this case. The record indicates that Newport has in excess of 116 retail malt beverage licenses. Ordinance No. 0-82-16 attempts to curtail only the expansion of this activity by limiting the number of licenses to 25. The ordinance clearly provides that it does not prohibit the renewal or transfer of any existing license, nor does it prohibit the issuance of licenses in excess of the number allowed where specific provisions are made for such outlets as hotel and motels.
Reliance on the case of Bickett v. Palmer-Ball, Ky. 470 S.W.2d 341 (1971) is misplaced. In that case we held that a county fiscal court had only the power granted to it by statute and because they had no statutory authority in this area, there action was improper. In this case, the City of Newport does have such authority pursuant to KRS 82.082.
*726There is no conflict between Newport and any superior authority vested in the State Board. The Board has chosen to remain totally silent in its official activities as to the regulation of this license. Consequently in the absence of any conflict, the city may establish such a quota and its ordinance should be given validity.
The remedy available to Bravard or others so situated is very simple. It would be to acquire an existing license and have it transferred. The litigant is not without remedy but the majority opinion would place Newport in the position of having absolutely no control over the number of alcoholic beverage outlets in its city and subject to the omniscient wisdom of state regulators. The result could allow outlets in unlimited numbers throughout Newport as well as every other incorporated city in the state.
The majority opinion would place Newport in the position of having absolutely no control over the number of alcoholic beverage outlets in its city and subject it to the caprice and inaction of the state which under present conditions would be able to allow an unlimited number of liquor licenses throughout the city. If the State Board ever adopts quotas or limits for Newport, there would at least be some known limit and regulation.
If the numbers were excessively large or unlimited, it could conceivably be challenged. However, if the majority opinion prevails, there is no way for any one to challenge the issuance of additional permits.
The Board has never exercised its authority pursuant to KRS 241.060(2) to limit or establish the number of various liquor licenses in the City of Newport.
There are no state regulations, statutes, constitutional provisions or recorded cases that prohibit the City of Newport from limiting the number of various liquor licenses issued by it within its territorial jurisdiction. KRS 82.082, the Home Rule Statute, and KRS 243.070 provide clear authority for the actions taken by the City of Newport.
Home rule is a method of distributing power between state and local government. See Sandlow The Limits of Municipal Power Under Home Rule: a Rule for the Courts, 48 Minn. Law Review 643. It is designed to allow cities local autonomy especially in dealing with matters of local concern such as alcohol. The Home Rule Statute grants power over cities to the cities themselves. Legitimate regulation of alcoholic beverages is an area of great concern and of such predominantly local interest that cities deserve a considerable measure of self-determination. Cities are better able to handle their own problems and to fashion their own solutions to individual problems consistent with law. Certainly an overview might be provided by statute so as to determine fair dealing in such situations. There should be no room for a parallel system of inchoate authority that interferes with active local decisions.
The state has not preempted and reserved to itself, even before home rule, the power to regulate the sale of liquor. The state has simply failed to act. The Board has never established any quota or limitation on the number of the various types of liquor licenses issued by the city.
In this case the State Board has never established any quotas or limitations on the number of liquor licenses issued by the City of Newport. The quotas established by the city ordinance do not conflict with any quota or regulation by the Board or its superior power in this area. Consequently, the issue is not the curtailment of the supremacy of the State Board but the authority of the City of Newport to establish such quotas of its own in the absence of any conflicting regulation by the state.
Faced with total inaction by the State Board the City of Newport has undertaken to regulate itself. It should be accorded legal recognition for such a courageous act of local government.
The decision of the Court of Appeals should be reversed.
LEIBSON and VANCE, JJ., join in this dissent.