Request By:
Ms. Marcella W. Horney
Kentucky Real Estate Commission
100 E. Liberty Street
Suite 204
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Rodney V. Tapp, Assistant Attorney General
You have requested in a letter to us an opinion as to whether an applicant must be an United States citizen or a naturalized citizen in order to apply for the real estate examination.
KRS 324.020 provides as follows:
On or after June 19, 1976, it shall be unlawful for any person to act as a real estate broker or real estate salesman or to advertise or assume to act as such real estate broker or real estate salesman within the Commonwealth of Kentucky without a license issued by the Kentucky real estate commission.
KRS 324.010 (c) in pertinent part says "'Broker' means any person who for a fee, commission, compensation or other . . ." KRS 324.010 (f) in similar fashion defines salesman as "any person who for a fee, commission, compensation or other valuable consideration" engages in certain transactions involving real estate. The above mentioned statutes merely require that an applicant for a real estate license be a "person" in order to meet one of many requirements. KRS 446.010 (2) defines person in such a manner as to permit its application to bodies politic and corporate, societies, communities, the public generally, individuals, partnerships and joint stock companies. Persons who are not citizens, so as to be termed aliens, would qualify as individuals under KRS 446.010 (2).
We have been unable to discover a Kentucky case deciding the question whether an applicant must be a citizen of the United States in order to take the real estate examination. However, in an old case,
Trotta's Admr v. Johnson, Briggs & Pitts, Ky., 121 Ky. 827, 90 S.W. 540 (1906) the Court held that the administrator of an alien's estate could recover damages under section 241 of the Kentucky Constitution. Section 241 permits recovery of damages "whenever the death of a person shall result from an injury inflicted by negligence or wrongful act. The Court described the policy behind such provision as one which protects every person in his liberty and in his property, whether he be an alien or citizen.
The Supreme Court of the United States has dealt with the problems of those who are not citizens and with the protection of their employment opportunities. The Court held in In re Griffiths, 413 U.S. 717, 37 L. Ed. 2d 910, 93 S. Ct. 2851 (1973), that it was a denial of equal protection under the 14th Amendment to the United States Constitution to exclude aliens from the practice of law. In
Sugarman v. Dougall, 413 U.S. 634, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973), the Court used the same analysis to stop New York State from absolutely excluding non-citizens from nearly all civil service positions. The Court has long held that rules which discriminate on the basis of alienage and totally exclude aliens from lawful occupations are inherently suspect. See
Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971).
In conclusion, it is our opinion, in the absence of any requirement of citizenship, that an applicant for the real estate examination will not be prevented from being administered the examination on the basis of alienage alone.