Request By:
Mr. Tommy Griffin
Assistant Director
Office of Highway Safety Programs
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask: Under what KRS does State Government have the right to issue private parking spaces for executives and their staffs?
Generally, pursuant to KRS 56.850, the Executive Department for Finance and Administration may adopt regulations for the control of vehicular and pedestrian traffic and parking of motor vehicles on, over and across grounds appurtenant to any building or other facility owned by the state or any agency thereof. Such regulations may include parking rules.
In implementation of KRS 56.850, 200 KAR 3:010 was issued. This regulation establishes the rules for the operation and parking of motor vehicles on the grounds of the State Capitol and all other state owned buildings in Franklin County except those exclusively used by and in the custody of any state agency authorized by law to regulate and control vehicluar traffic and parking upon the grounds of such building or buildings.
Section 1 of the regulation provides that " parking areas or spaces on the grounds of state owned buildings in Franklin County not specifically reserved or restricted as provided in this regulation shall be available for use by all state employees and visitors to such buildings. Employee and visitor parking in parking areas or spaces posted and designated as reserved or restricted parking areas, or spaces, is prohibited. " (Emphasis added).
Section 2 of the regulation deals with the designating of reserved parking for elected officials and their principal assistants, etc.:
"Specific parking area or spaces may be posted and designated as reserved for all elected officials and their principal assistants, members of the Judiciary, members of the Governor's and Lieutenant Governor's staffs, members of the Cabinet and their deputies, heads of bureaus or comparable grade and position, state owned vehicles and, upon application to the Property Section, Bureau of Facilities Management in the Executive Department for Finance and Administration, temporarily or permanently handicapped employees. All persons authorized to have a reserved parking space shall register their vehicles with the Property Section; a privately owned vehicle parked in a reserved parking area or space not registered shall be subject to removal from the grounds at the owner's expense."
Section 3 relates to restricted areas for carpool parking, the Senate parking lot etc.
Section 5 provides that reserved, restricted and "no parking" areas shall be posted. Unauthorized vehicles parked in reserved or restricted areas, or in "no parking" areas, shall be subject to tow away and removal from the grounds of such buildings at the owner's expense. See also Section 1.
The answer to your question is that KRS 56.850 specifically authorizes the Department for Finance and Administration to issue regulations relating to the proper control of vehicular traffic and parking near state owned buildings. The Department implemented the statute in issuing 200 KAR 3:010, which specifically and explicitly provides, inter alia, for reserved parking spaces for elected officials and their principal assistants. It is unquestioned that the legislature had the authority to establish this policy of traffic control and vehicle parking near state buildings. 1 Further, it is clear that the Executive Department for Finance and Administration had the authority under the statute to promulgate regulations tailored and designed to promote the statutory objectives of effective traffic control and vehicle parking. We think the regulations are reasonable, and are not arbitrary. See § 2 of the Kentucky Constitution; and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). However, Section 2 of the Constitution has been declared to treat only the exercise of arbitrary power over the lives, liberty and property of individuals, and not the handling of state property or funds. Guthrie v. Curlin, Ky., 263 S.W.2d 240 (1953) 244. Thus the controlling and key matter here is simply the state's regulating the use of its property and traffic and parking as related to the state's real property. Thus the "control and regulation of public buildings and places owned by the state are vested in the legislature and its authorized agency . . . ." Ibid., § 105, p. 1078.
This traffic control and parking statutory treatment centers around the getting in and out of state owned buildings. The state has the same proprietary rights as a person. The power of the state in this regard is vested in the legislature. 81 C.J.S. States, § 104, p.p. 1075-1077. See also Ibid., § 105, p. 1078. In O'Leary v. Commonwealth, Ky., 441 S.W.2d 150 (1969), Judge Palmore observed that the sanctity of a college campus [there a state agency] is no less than that of private property, and thus certain constitutional protections of free speech and free assembly could not be invoked to run counter to the properietary uses and methods of the state through its agency the University of Kentucky. In O'Leeary, Judge Palmore wrote that the privilege of an enrolled student to use and occupy the property of a school is and should be subject to the will of its governing authorities.
Judge Clay wrote, in McDonald v. University of Kentucky, 225 Ky. 205, 7 S.W.2d 1046 (1928) 1048, that "subject to the limitations prescribed by the constitution, the legislature has complete control of any property belonging to any institutions of the state." See also Kentucky Lake Vacation Land v. State Property & Building Commission, Ky., 333 S.W.2d 779 (1960), holding that the Division of Parks, under an express legislative provision, could impose a charge for the use of the parks.
The argument that a reserved space is unconstitutional in denying equal protection and equal privileges and immunities in violation of Amendment 14 and Article IV, Section 2, of the Constitution of the United States has no application here, since the state may make such provisions for its property and the related traffic and parking control. See Guthrie v. Curlin, Ky., 263 S.W.2d 240 (1953), above.
Finally, you ask: Under what KRS does the state security people have a right to tow your car away when parking in a private space?
In implementation of KRS 56.850, the Department of Finance's regulation 200 KRS 3:010 provides in Section 1 that unauthorized vehicles parked in reserved or restricted areas or spaces are subject to removal from the grounds at the owner's expense. See also Section 5, reiterating the tow away provision. Further, KRS 56.850 expressly provides that "security officers employed by the department, by any other state agency or instrumentality authorized by the department to enforce the regulations adopted by the department under this section, shall have the authority to remove, or cause to be removed, at the owner's expense, any motor vehicle parked on the grounds of any state owned building covered by such regulations, in a manner impeding or disupting the orderly flow of traffic on such grounds or the movement thereon of an emergency vehicle, or in violation of any traffic control or parking regulation of the department. " (Emphasis added).
KRS 56.990 provides, upon conviction, a fine, for violation of the traffic control and parking regulation, of not less than $2 nor more than $15.
Footnotes
Footnotes
1 16 Am. Jur. 2d, Constitutional Law, § 228, p. 477.