Request By:
Honorable John A. Breslin, Jr.
Attorney at Law
Court Square
Maysville, Kentucky 41056
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 20 in which you relate that, as an operator of a loose-leaf tobacco warehouse in Maysville, the Division of Weights and Measures has notified you that you must place your commission charge on the weigh bill attached to each basket of tobacco. You have in the past left the space on the bill blank but have posted the warehouse commission on the scale house. You question the validity of the division's requirement.
The Division of Weights and Measures of the Department of Agriculture has adopted the following regulation which is published in the Kentucky Administrative Regulations Service:
"302 KAR 77.010. Tobacco sales commission fees.
RELATES TO: KRS 248.430
PURSUANT TO: KRS 13.082, 248.300
NECESSITY AND FUNCTION: Farmers are entitled to know what the costs are for selling their tobacco at the warehouse. This regulation requires full disclosure of the commission prices.
Section 1. Any person who receives or undertakes to receive or take care of leaf tobacco for sale at public action, whether with or without compensation, shall cause to be printed in conspicuous type on the front of the 'weigh bill' and 'pay sheet' given to each tobacco owner and producer, a schedule setting forth the rates of all commissions, fees, discounts, and deductions, and this requirement shall be enforced by the inspectors in the Division of Weights and Measures, Department of Agriculture. (KWMR-T.W. 1; Ky. R. 754; eff. 5-14-75.)"
The above regulation is based on the division's authority to administer the provisions of KRS 248.290 to KRS 248.440 relating to the sale of tobacco, which includes the general supervision over the sale of tobacco in warehouses throughout the state pursuant to KRS 248.300 and KRS 248.430. The latter statute specifically requires that the warehouse post on the outside of the scale house and in the farmer's waiting room, if such places are in the warehouse, a schedule setting forth the rates of all commissions, fees, discounts and deductions. We believe that pursuant to the division's general supervisory power it can, in accordance with the above quoted regulation, require that the weight bill include the commission charged by the warehouse so as to more clearly publicize the total cost involved in the sale. This follows the basic purpose of the notice requirements contained in KRS 248.430.
You also question the right of the Division of Weights and Measure to indicate to you that the rate of the sale commission could not be reduced during a sale season. The basis of the division's statement would, we believe, be KRS 248.360 prohibiting special privileges or services by warehousemen to any customer that is not extended to all customers on like terms and conditions. Obviously, if your commission rate was reduced during the sale season, all customers doing business with your warehouse during the season would not be charged the same commission, thereby extending to certain customers a privilege [in the form of a lower commission] not extended to others.