Request By:
Mr. David Evans
City Administrator
City of Prestonsburg
P.O. Box 31
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Deputy Attorney General
This is in reply to your letter raising questions concerning the selling of ice cream in the city. The city has established a license fee system for occupations within the city limits. One license is for the purpose of allowing vendors to sell from non-stationary structures or trucks. A particular business concern, "Mr. Softee," sells ice cream products from a truck and has purchased a license to sell within the city limits.
The city has an independent Park Commission, apparently created pursuant to KRS Chapter 97, which operates the city park. The Park Commission leases a concession stand every summer to an individual on a commission basis. The Park Commission has informed the city that it will not allow the Mr. Softee truck in the park as it will take away business from the concession stand. The park is a public park and has a dedicated city street running through it.
Your primary question is whether the Park Commission may forbid a vendor with valid city license from selling a valid city license from selling his products in the public city park? Your second question is, if the ice cream truck driver may sell at the park, may the Park Commission designate a particular location for the vendor to occupy in order to sell his products? Your third question is whether the Park Commission may charge the ice cream truck driver a fee to sell in the park as the Park Commission receives a fee in connection with the concession stand it leases?
Section 181 of the Kentucky Constitution provides in part that the General Assembly may, by general laws, delegate the power to counties, towns, cities and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions. KRS 92.280 (2) states that, "The legislative body of each city of the second to sixth class may impose license fees on stock used for breeding purposes, and on franchises, trades, occupations and professions, and may provide for the collection of such fees." KRS 92.281 (1) provides in part that cities of all classes are authorized to levy and collect any and all taxes provided for in section 181 of the Kentucky Constitution.
The above mentioned authorities clearly indicate that a city may impose license fees on occupations. The courts have held that an occupational license fee tax is constitutional so long as it adopts reasonable standards and is not confiscatory, oppressive or prohibitory. See OAG 72-375, copy enclosed, at page one, and
City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948).
We assume that the Park Commission was organized and presently functions pursuant to the provisions of KRS Chapter 97. While we do not know what particular provisions of that Chapter the Park Commission is operating under, there is no statutory authority for the Park Commission to become involved with occupational license fee taxes.
In
City of Louisville v. Fischer Packing Company, Ky., 520 S.W.2d 744 (1975), the Court said in part that the statutes expressly authorize the city to levy and collect the occupational license tax and provide that such licenses shall be issued and enforced as prescribed by ordinance. A licensee is, in general, entitled to do the acts authorized by the license, subject to other applicable laws, and a license for conducting certain kinds of business does not authorize the licensee to do other business not named in the license. If location is a term of the license the licensed activity cannot be conducted at a location not named in the license. See McQuillin, Mun. Corp. (3rd Ed.), Vol. 9, § 26.13.
The city and not the Park Commission has the authority to impose an occupational license tax and the terms of the city's ordinance govern the activities of one who has been licensed by the city. Thus, if the licensee in question is operating under a license authorizing him to sell ice cream from a truck on the public streets generally, with no restrictions as to location, the Park Commission cannot keep that vendor from selling on a public street in the city park.
A licensed vendor's selling locations on public streets could probably be limited to designated areas by the enactment of reasonable regulations by the city under its occupational license ordinance, but the Park Commission cannot determine the locations where an authorized and licensed vendor may sell his products on the public streets.
There is a statute authorizing the city to delegate to a park commission the power to prescribe admissions, fees, rentals, concessions and other charges for the use of the park and its facilities (KRS 97.090). However, a park commission's authority over concessions in the park does not extend to control over licensed vendors on the city streets. The Park Commission does not have the authority to impose a fee on a vendor, licensed by the city to sell on the public streets, for the privilege of selling on the city streets.