Request By:
Mr. Willie E. Peale, Jr.
Attorney at Law
493 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have made inquiry concerning vending machines and game machines located in restaurants leased by the Department of Transporation. The restaurants are located on "Service Islands", which lie in between state rights of way on the Kentucky Turnpike and Western Kentucky Toll Road, i.e., near Shepherdsville, Lebanon Junction and Beaver Dam.
The Department of Transportation has informed us that the lease between the Department and the lessee, Henderson Restaurant, Inc., covering the subject restaurants, specifically provides that the lessee may use vending machines on the leased premises for the purpose of dispensing various products. There is no provision in the lease which would prohibit the lessee from contracting with a vending machine company in order to obtain the vending machines to be so used on the premises.
You represent a minority business which attempted to negotiate a sub-contract with the restaurant lessee mentioned above which would have involved your client's placing game machines in such restaurants. You mention paragraph 5, page 13 of the lease, relating to the operator's furnishing certain restaurant equipment, such as cooking utensils, silverware, linens, dishes, etc; and it mentions all "equipment", etc. However, under the doctrine of ejusdem generis, where general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be restricted by the particular designation, and to include only things of the same kind, class or nature as those specifically enumerated. See
Jefferson County Fiscal Court v. Jefferson County, 278 Ky. 68, 128 S.W.2d 230 (1939) 233. Thus paragraph 5 does not involve game machines. You also mention page 18 of the lease paragraph G, which you think permits the use of game machines on the leased premises. However, paragraph G mentions only vending machines.
Your questions are as follows:
Whether the state - through a state agency, by leasing its facilities under a contract which provides that the state will receive rent and a percentage of the gross income becomes a "partner" of the lessee-vendor? And,
Whether state statutes governing minority participation and equal employment opportunity are applicable to state contracts with private vendors?
As relates to question no. 1, the mere fact that a lease provides for rent and a percentage of the gross income in no way makes the state a partner of the lessee. The measurin of a percentage of gross income is merely an additional method of stating what the lease monetary consideration will be.
The answer to question no. 2 is that under the Equal Employment Opportunity Act, specifically KRS 45.560(1), "contract" is defined as any binding legal relationship between the state of Kentucky and a contractor for supplies and services, or for the use of Commonwealth property, in which the parties, respectively, do not stand in the relationship of employer and employe. KRS 45.570 provides, except for contracts exempted in KRS 45.590, that state contracting agencies must in its contract include certain provisions of agreements. For example, the contractor will not discriminate against any employe or applicant for employment because of race, etc. The contractor will take affirmative action in regard to employment, upgrading, demotion, without regard to race, etc. Ads for employees will provide that all qualified applicants will receive consideration without regard to race, etc.
However, as you will note, KRS 45.560 to 45.640 relates only to equal "employment" opportunities. In other words, it involves people being hired by a contractor or subcontractor. Thus we are of the opinion that KRS 45.560 to 45.640 (Equal Employment Opportunity Act) applies only to an employer-employee relationship. It does not reach the situation wherein under a sub-contract vending machines are placed in the restaurants.
The Office of General Counsel of the Department of Transportation has informed us that it is their opinion that a game machine, such as a video game machine, does not fall in the same category as a vending machine and is thus not provided for in the lease. A game machine is not a vending machine. Further, the Department has determined, as a matter of policy, that it is not in the public interest for game machines to be located on the premises of the subject restaurants. Therefore, the Department will notify the lessee of the subject restaurants that any game machine in said restaurants will be required to be removed from the premises.