Request By:
Mr. John A. Celletti
Chairman
Kentucky Real Estate Commission
100 E. Liberty Street
Suite 204
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; John H. Gray, Assistant Attorney General
Thank you for your letter of December 9, 1980.
You ask in your letter whether the Commission may phase in the enforcement of KRS 324.115 and KRS 324.117. Both KRS 324.115 and KRS 324.117 in their present form were to have been effective as of July 15, 1980. Immediate enforcement is, therefore, now in order.
You also ask if the Commission must strictly interpret and enforce KRS 324.115 and KRS 324.117 or whether the Commission may interpret and enforce them in a less stringent manner. The Commission is to use its own discretion in interpreting KRS 324 and is to enforce its provisions neither strictly nor less stringently, but fairly, impartially, and consistently.
You further ask whether the Commission would be violating its duties to enforce the statutes and thus be subject to a possible law suit, if the Commission construes and enforces the statutes in a less stringent manner. The Commission will be in violation of its duties if it fails to perform any of the duties set forth in KRS 324.281(2) or if it performs those duties in an arbitrary manner. When the Commission's actions begin to enter the realm of being unreasonable and arbitrary, the Commission may become subject to a law suit [Wagoner v. Blair Fork Coal Co., 534 S.W.2d 250, Ky., (1976)].
Your final question asks whether a franchise operation such as Century 21 may advertise by electronic media and not indicate the name of any broker within the advertisement. KRS 324.117 directs its focus toward regulating the advertising of individual brokers and not franchise operations. In accordance with this focus, KRS 324.117 provides in particular that "the designated broker's name and the fact that he is a real estate broker shall appear in all advertising of any nature whatsoever." The language of KRS 324.117 thus suggests that its requirements are not applicable when the advertising is done by a franchise operation and not a broker.
KRS 324.117(6) prohibits the Commission from regulating the content, size, or format of any other advertising, beyond the requirements of KRS 324.115 and KRS 324.117. It would appear, therefore, that a franchise operation may advertise by electronic media and not indicate the name of any broker within the advertisement.
It is hoped that this satisfactorily answers your questions. If we can be of any further assistance, please feel free to contact us.