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Request By:

Mr. Rich Gimmel
News Director
WTVQ, Inc.
P.O. Box 5590
Lexington, Kentucky


Opinion By: Robert F. Stephens, Attorney General; By: H. Regina Cullen, Assistant Attorney General

This letter is in response to your question as to whether the proprietor of a retail establishment can legally expel a reporter who is checking prices within the store.

The Kentucky Penal Code, KRS 511.090(2) provides:

A person who, regardless of his intent, enters or remains in upon premises which are at the time open to the public does so with license or privilege unless he defies a lawful order not to enter or remain personally communicated to him by the owner of such premises or other authorized person.

Therefore, any person entering a retail establishment for any reason whatsoever has been given the rights and status of a licensee by Kentucky law. However, this status is not fixed. According to Corpus Juris Secundum, Negligence § 63 (20, "[a] permission to enter or be on the premises involves a leave or license but it gives no right or at least what right there is to be on the premises depends on the owner's consent and may be revoked at any time."

Thus, even though every person entering a retail establishment is automatically vested with the status of a licensee, such status can be revoked at any time by order of the owner or other authorized person. Such order must be personally communicated to the licensee to be effective under the Kentucky Penal Code.

There are a number of exceptions to this general rule allowing ready revocation of licensee status in Kentucky law. KRS 344.120 part of the Kentucky Civil Rights Act states:

Except as otherwise provided in KRS 344.120 to 344.140, it is an unlawful practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of a place of public accommodation, resort or amusement as defined in KRS 344.120 to 344.140 on the ground of race, color or national origin.

Further, KRS 344.130 provides in part:

As used in this chapter unless the context requires otherwise: "Place of public accommodation, resort or amusement" includes any place, store or other establishment either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public. . ."

There is no statute that specifically gives the members of the press a position comparable to the broad classes of persons enumerated in KRS 344.120. In fact, when given the opportunity to extend the rights and privileges of the press, especially in regard to their newsgathering activities, the Kentucky Court of Appeals (now the Supreme Court) has not done so and rather has equated the position of the press with that of the public in general.

Courier Journal and Louisville Times Co. v. Curtis, 335 S.W.2d 934 (Ky., 1952);

Johnson v. Simpson, 433 S.W.2d 644 (Ky., 1968). Thus the rights of a reporter must be viewed in the same light as those of any other member of the public.

The Kentucky courts have not interpreted the language of KRS 344.120 so as to extend or limit the classes of people protected by the statute from revocation of their licensee status and expulsion from a retail establishment. However, the California Supreme Court in In re Theodore Cox, 474 P.2d 992, 90 Cal. Rptr. 24 (1970), dealt with the issue of who may be excluded from a business generally open to the public. In this case the plaintiff was a young man who had been thrown out of a shopping center supposedly because his companion had long hair and dressed in an unconventional manner. The California court utilized its state civil rights act, one similar to Kentucky's, and determined that "the act specifies particular kinds of discrimination -- color, race, religion, ancestry and national origin -- serves as illustrative, rather than restrictive indicia of the type of conduct condemned. Id. at 995. This expansive reading of the statute was important to the court's finding that:

. . . [A] business generally open to the public may not arbitrarily exclude a would-be customer from its premises. . . .

In holding that the Civil Rights Act forbids a business establishment generally open to the public from arbitrarily excluding a prospective customer, we do not imply that the establishment may never insist that a patron leave the premises. Clearly, an entrepreneur need not tolerate customers who damage property, injure others, or otherwise disrupt his business. A business establishment may, of course, promulgate reasonable deportment regulations that are rationally related to the services performed and the facilities provided. Id. at 999.

Analogizing this case to the instant situation, it is clear that were the Kentucky courts to follow the California decision, the only circumstances under which a store owner would be justified in ejecting a person would be those instances where there is some danger to the property or other persons. Note that although the California court's holding is directed only to customers, such distinction is unimportant in Kentucky. This is due to the Kentucky Penal Code's definition of a licensee (discussed previously) which omits intent as an element of the status of licensee.

Therefore, it is our opinion that the owner of a retail establishment or an authorized representative may not arbitrarily exclude a reporter checking prices within the store unless the proprietor has a reasonable basis for such expulsion. Such a reasonable basis might be maintenance of normal business operations, protection of property, or preventing harassment of other store employees or patrons.

In the final analysis, it must be noted that this question is ultimately subject to the determination of the Kentucky courts.


2016 Ky. AG LEXIS 71

The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Lexis Citation:
1977 Ky. AG LEXIS 782

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