Request By:
Mr. Kendall Robinson
Attorney at Law
Booneville, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to which newspaper the Owsley County Fiscal Court should use for the publication of notices which the Kentucky statutes require to be published.
You state that Owsley County has been publishing all its legal notices in the Beattyville Enterprise, Booneville Edition; that this paper maintains an office in Owsley County for gathering news but is not a local paper in the sense that it is the only paper in Owsley County. Another newspaper, the Booneville Sentinel, has been published on a regular basis in Owsley County for the past 15 months. The Booneville Sentinel has approached the Owsley County Fiscal Court and made inquiry as to what they could do to make a determination as to whether or not they are the paper with the larger bona fide circulation according to KRS Chapter 424. You advised the Booneville Sentinel to file an affidavit setting forth its qualifications. You also requested that the Beattyville Enterprise, Booneville Edition, file such an affidavit. The owner of the latter paper responded that according to case law the publisher's statement of ownership published in October is the deciding factor and therefore the owner has declined to submit the requested affidavit. You have asked the Attorney General to state the law on the subject.
We believe that you properly requested the submission of affidavits by the two newspapers. We can find no case law to the effect that the qualifications of a paper can be stated only in October.
The statute setting forth the qualifications of newspapers is KRS 424.120, the pertinent part of which reads as follows:
"(1) Except as provided in subsection (2), whenever an advertisement for a publication area is required by law to be published in a newspaper, the publication must be made in a newspaper that meets the following requirements:
"(a) It must be published in the publication area. A newspaper shall be deemed to be published in the area if it maintains a known office in the area for the purpose of gathering news and soliciting advertisements and other general business of newspaper publications, and has a second-class mailing permit issued for that office. * * *
"(b) It must be of regular issue and have the largest bona fide circulation in the publication area. A newspaper shall be deemed to be of regular issue if it is published regularly, as frequently as once a week, for at least fifty weeks during the calendar year as prescribed by its mailing permit, and has been so published in the area for the immediately preceding one-year period. A newspaper shall be deemed to be of bona fide circulation in the publication area if it is circulated generally in the area, and maintains a definite price or consideration not less than fifty percent of its published price, and is paid for by not less than fifty percent of those to whom distribution is made; and
"(c) It must bear a title or name, consist of not less than four pages without a cover, and be of a type to which the general public resorts for passing events of a political, religious, commercial and social nature, and for current happenings, announcements, miscellaneous reading matter, advertisements, and other notices. The news content must be at least twenty-five percent of the total column space in more than one-half of its issues during any twelve-month period.
"(2) * * * If, in any county there is no newspaper meeting the requirements of this section for publishing advertisements for such county, any advertisements required to be published for such county or for any publication area within the county shall be published in a newspaper of the largest bona fide circulation in that county, published in and qualified to publish advertisements for an adjoining county in Kentucky. * * *
You will note that one of the requisites of qualifying a newspaper is that it maintains an office in the publication area and has a second class mailing permit issued for that office. You state in your letter that the Beattyville Enterprise, Booneville Edition, maintains an office in Owsley County for gathering news, but you do not state whether it has a second class mailing permit for that office. It is also required that the office in the publication area be for soliciting advertisements and other general business of newspaper publications.
If both of the papers in question are qualified in every other respect, the county should make its legal advertising in the newspaper with the largest circulation in the publication area. The proper way to make the determination is, as you have already indicated, by evidence submitted in affidavit form from the publishers.