Request By:
Mr. James S. Bird
Commissioner
Bureau of Public Properties
Executive Department for
Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 77-122, we concluded that when the state leases only a portion of a building, the entire building becomes "public" within the meaning of KRS 227.305, which statute insures the access of the physically handicapped to all public buildings and provides for state fire marshal regulations relating to the minimum requirements for facilities for physically handicapped persons in all public buildings to be constructed or remodeled after June 21, 1974.
You point out the financial and other impact of such holding.
You request us to review this legislation with regards to the meaning of "public building" as defined by 806 KAR 50:020 and render an opinion as to whether or not the state's leasing a portion ofa building converts the entire building into a "public building. "
Section 1, Definitions (1) of 806 KAR 50:020, defines "public building" :
"'Public Building" shall mean any building constructed, owned, or leased by the Commonwealth or any political subdivision thereof; including but not limited to schools, colleges, and other institutions of higher learning; medical centers, hospitals, and clinics; train depots and airports; except three (3) or less relocatable classroom units when used in conjunction with an existing school facility;"
Reduced to its simplest terms, the regulation provides that a public building shall be any building owned or leased by the Commonwealth. The regulation says nothing about the lease of a portion of any building by the state [as lessee]. The express statement suggests that any lease of a portion of a building to the Commonwealth must be viewed in terms of the whole building as a public building, with its attendant requirements for the physically handicapped. OAG 77-122 expresses that view. KRS 227.305 is written in express terms of "all public buildings."
KRS 227.220(8)(b) defines "public building" as meaning any building constructed, owned or leased by the Commonwealth or any political subdivision thereof." Thus the regulation definition follows basically the statutory definition.
A statutory definition is fundamentally a guide and may not be employed so as to change the nature of things to which it is applied.
Robertson v. Western Baptist Hospital, Ky., 267 S.W.2d 395 (1954) 397. Here, under the nature of things, it can be seen that the state often leases a portion of a building, and not the whole building. The construction given in OAG 77-122 given in OAG 77-122 does not take the basic nature of things, as to leases of portions of a building by the state, into consideration. Further, it is an established rule that the powers or duties in a statute are not limited to the expressly conferred powers or duties, but include those powers and duties necessarily or fairly implied in, or incident to, the accomplishment of the things which are expressly authorized.
Long v. Mayo, 271 Ky. 192, 111 S.W.2d 633 (1937) 637. In other words, the express power carries with it all powers essential to its exercise.
Commonwealth Ex. Rel. Breckinridge v. Nunn, Ky., 452 S.W.2d 381 (1970) 383. It is our opinion that implicit in KRS 227.305 and 806 KAR 50:020 is the idea that where a portion of building has been leased to the Commonwealth, the Commonwealth's responsibility in providing for facilities accessibility for the physically handicapped extends only to that portion of the building leased by the Commonwealth. This is subject only to the condition that the state's responsibility would also extend to any nonleased space and facilities which would be directly and necessarily related to the facilities accessibility of the state's leased portion of the building to the physically handicapped. Obviously where the state leases only the first floor in a ten-story building, the state's responsibility regarding accessibility of the building to the physically handicapped would extend only to the first floor area.
Since OAG 77-122 is in conflict with this opinion, it is hereby withdrawn.