Request By:
Hon. Arthur L. Schmidt
Representative
69th District, Campbell County
134 Winter Lane
Cold Spring, Kentucky 41076
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
In your letter to the Attorney General of February 6, 1978, you pose the following question:
"During the recent emergency, the Governor issued orders for all vehicles not equipped with 4-wheel drive or chains to stay off the highways. The fine for violation of this order was set at $100.
"Would you please inform me of the constitutional or statutory authority granted to the governor that permits him to issue such an order."
The Governor, under the authority of KRS 39.409, has certain emergency powers. The Governor may decree that a state of emergency exists and thereafter the Governor shall and may exercise for such period as such a state of emergency exists all continuous enummerated emergency powers. Among such powers are the following:
"(5) To exclude all nonessential personnel from the scene of such emergency, and to command persons or groups assembled at said scene to disperse;
(6) To declare curfews and establish the limits of same;
* * *
(8) To perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population."
In KRS 39.401(1) the kind of circumstances which may be designated an emergency include fire, flood, tornado, other natural or manmade caused disasters, riot, enemy attack, sabotage, explosion, power failure, energy shortages, transportation emergencies or other causes. We think it is reasonable to conclude that the Governor can decree emergency powers under conditions of blizzard, deep snow and icy highways.
As to the Governor fixing the penalty to be imposed for violation of his emergency orders, there is no such authority in KRS Chapter 39. KRS 39.990 provides that any person violating any provision of an emergency order shall, upon conviction thereof, be guilty of a misdemeanor punishable by a fine or imprisonment. Since the statute does not specify whether the misdemeanor shall be a Class A or a Class B misdemeanor, it will have to be considered a Class B, or the least serious misdemeanor. The maximum penalty for a Class B misdemeanor is imprisonment for not more than 90 days [KRS 532.020(3)] or a fine of $250 [KRS 534.040(2)(b)], or both.
Since we do not believe that the Governor has the authority to fix the penalty for the violation of an emergency order, the penalty provided for Class B misdemeanors will apply. Since the Governor's announced penalty of a $100 fine was less than the maximum provided by statute, a court could assess the $100 fine or a greater fine up to the statutory limit. A court could also impose a jail sentence up to 90 days.