Request By:
Mr. Clifford F. Haley, Jr.
Bullitt County Judge Executive
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Bullitt County is proposing to enact an ordinance creating a recretational, tourist and convention commission. This would be by the separate action of Bullitt Fiscal Court, pursuant to KRS 91A.350(2).
Even though the commission is established by the separate or sole action of the Bullitt Fiscal Court, the membership appointments must follow the requirements of KRS 91A.360. The seven members of the commission must be appointed jointly by the mayor of Shepherdsville (the largest city in the county) and the county judge executive.
In answer to the question raised by County Attorney Tom Givhan to you, such a commission can be established by the sole or separate action of Bullitt Fiscal Court. Of course, the various statutes relating to the membership of the commission and other matters must be followed.
Bullitt County is presently in the process of considering the enactment of a hotel-motel tax. You would like for the tax to be applied solely for recreation.
Assuming that the county establishes a recreational, tourist and convention commission, pursuant to KRS 91A.350(2), the county is required to include the commission in the annual budget of the county, and must provide funds for the operation of the commission by imposing a transient room tax, not to exceed three percent (3%) of the rent for every occupancy of a suite, room or rooms, charged by all persons, companies, corporations or other like or similar persons, groups or organizations doing business as motor courts, motels, hotels, inns or like or similar accommodations businesses. Under subsection (2) of KRS 91A.390, a portion of the tax, as determined by the fiscal court, may be used to finance the cost of acquisition, construction, operation and maintenance of facilities useful in the attraction and promotion of tourist and convention business and shall include athletic stadiums. The balance of the money collected from the tax shall be used for the purposes set forth in KRS 91A.350. Proceeds of the tax may not be used to provide a subsidy in any form to any hotel, motel or restaurant. The purposes of KRS 91A.350 in this context would include: "The purpose of promoting recreational convention and tourist activity . . ."
Under § 171 and § 181, Kentucky Constitution, a county may levy two types of taxes: (1) ad valorem taxes and (2) license taxes. Driver v. Sawyer, Ky., 392 S.W.2d 52 (1965) 53.
In Second Street Prop. v. Fiscal Court of Jefferson County, Ky., 445 S.W.2d 709 (1969), the court noted that the statute, in counties other than those containing a first class city, added a "recreational" purpose as well as providing for the promotion of convention and tourist activity. The old Court of Appeals, in holding that such different purpose treatment did not violate either § 59 or 60 of the Kentucky Constitution, and that the classification was a reasonable one, wrote this at p.p. 715-716:
"It is our view the legislature had reason to provide an additional function for tourist and convention commissions in counties other than those containing a city of the first class. From a realistic standpoint, Jefferson County, containing the city of Louisville, is the principal convention center in the Commonwealth due to its size and facilities. The legislature could reasonably determine that the Commission's function there should be limited to the promotion of tourist and convention activity. It also may have considered that the recreational facilities in that area are sufficiently financed from other sources. On the other hand, the development of recreational facilities in less populated counties may have appeared equally as essential for the attraction of tourists.
CONCLUSION
1. It is our opinion that under KRS 91A.350(2), a fiscal court for the county may, by its separate action alone, establish or create a recreational, tourist and convention commission. This poses no problem, although the membership of the commission is appointed, under KRS 91A.360, by the joint action of the mayor of the largest city in the county and the county judge executive. Cf. KRS 67.710(8), requiring the consent of the fiscal court. Here the specific statute controls. See Heady v. Com., Ky., 597 S.W.2d 613 (1980) 614. Other statutes relating to such a commission must, of course, be adhered to. KRS 91A.350(2) explicitly provides that such commission may be established by counties and cities either jointly or by separate action. We believe this should be construed literally. Barrett v. Stephany, Ky., 510 S.W.2d 524 (1974). In connection with the membership statute, KRS 91A.360(1) even where the commission is established by the sole action of the county, the largest city in the rural counties usually contains a large percentage of the hotels and motels in the county and will be thus directly involved in the work of the commission. Thus our conclusion is reasonable. Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959). See OAG 75-523, in which we expressed some doubt about the creation of the commission by a city acting singly and the joint appointment of members by a city and county. For reasons given in this opinion, OAG 75-523 is modified accordingly.
2. The motel-hotel license tax imposed by the fiscal court pursuant to KRS 91A.390 must be expended for the multipurposes explicitly set forth in KRS 91A.390(2). Those purposes include recreation as well as providing for the promotion of convention and tourist activity.