Request By:
Mr. John Bowman
WHAS-TV NEWS
P.O. Box 1084
Louisville, Kentucky 40201
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: William L. Davis, Assistant Attorney General
This is in response to your letter of October 27, 1982, in which you stated the following:
This is to request an opinion, or opinions, from your office regarding House Bill 397, passed by the Kentucky General Assembly in March 1982 and signed into law by the governor April 2, 1982.
The purpose of the law was to establish a schedule for auto dealer license suspension and revocation for convictions involving odometer tampering; it would also establish a $5,000. fine for dealers who fraudulently alter odometers or speedometers.
My questions are:
Since all odometer cases have been handled as civil matters in court, and since HB 397 specifically refers to "convictions," (which implies a criminal conviction), does the law apply to any cases that have been disposed of so far?
I am unable to find any state law which makes odometer tampering a criminal offense; therefore, does this law apply to federal convictions; and, is a $5,000. fine for a misdemeanor offense allowable under the Kentucky Penal Code?
Finally, is the law constitutional? One provision of the law attempts to make it "retroactive to cases occuring since July 1, 1976." Does this make the law an unconstitutional "Ex Post Facto" Law?
It will be necessary to note from the outset that KRS 190.270 was enacted by the 1976 Acts, Chapter 246, House Bill 322, Sections 2 to 4. Also, House Bill 397, Section 1, only amended KRS 190.270 by adding subsection (4). KRS 190.270 now reads as follows:
(1) It is unlawful for any person to advertise for sale, to sell, to use, or to install or to have installed, any device which causes an odometer to register any mileage other than the true mileage driven. For purposes of this section, the true mileage driven is that mileage the vehicle has been driven as registered by the odometer within the manufacturer's designed tolerance.
(2) It is unlawful for any person or his agent to disconnect, reset, or alter the odometer of any motor vehicle with the intent to change the number of miles indicated thereon.
(3) It is unlawful for any person with the intent to defraud to operate a motor vehicle on any street or highway knowing that the odometer of such vehicle is disconnected or nonfunctional.
(4) The department shall establish the following suspension and revocation schedule for dealer and manufacturer violations:
(a) First court conviction -- probation period of one (1) year;
(b) Second and subsequent court convictions -- thirty (30) day suspension per conviction; and
(c) Eight court convictions -- revocation of dealer's license to operate. For the purpose of suspension or revocation, if a party is convicted of multiple offenses by the court in a single appearance, said convictions shall be construed by the department as one (1) offense. The revocation and suspension schedule shall be retroactive to offenses committed as of July 1, 1976, unless a dealer or manufacturer has served a suspension or revocation through previous action of the department.
The liability for violation of KRS 190.270 is found in KRS 190.310 and 190.990(4). KRS 190.310 states:
(1) Any person who, with intent to defraud, violates any requirement imposed under KRS 190.270 to 190.320 shall be liable to the transferee in an amount equal to the sum of:
(a) Three times the amount of actual damages sustained or fifteen hundred dollars ($1,500), whichever is the greater; and
(b) In the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.
(2) An action to enforce any liability created under subsection (1) of this section, may be brought in a circuit court of a county in which the purchaser of the motor vehicle resides.
KRS 190.990(4) states: "Any person who willfully violates KRS 190.270 to 190.320 shall be subject to a penalty of five thousand dollars ($5,000) per violation, which may be recovered on behalf of the Commonwealth by the attorney general."
Additionally, it will be worth examining from the outset a few cases to assist in understanding the meaning of ex post facto law. It has been recognized in virtually all United States Supreme Court cases to consider the point that only laws of a criminal nature can amount to ex post facto laws within the meaning of Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1 of the United States Constitution which prohibit such enactments. The following cases contain express statements to this effect.
Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648 (1798);
Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137 (1911);
Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911 (1954), rehearing denied, 348 U.S. 852, 75 S. Ct. 17, 99 L. Ed. 671 (1954). In
Calder v. Bull, supra, a landmark case, Justice Chase noted that if the term ex post facto law were to be construed to include and to prohibit the enacting of any law after a fact, it would greatly restrict the power of the federal and state legislatures. In
Galvan v. Press, supra, it was noted that it would be unjustifiable for the Supreme Court to overturn a view so deeply rooted and so consistently adhered to as the view that the ex post facto clause of the United States Constitution is applicable only to prosecutions of crime.
Moreover, a number of United States Supreme Court cases contain general pronouncements indicating that laws imposing certain types of alleged punishments lack the criminal character necessary to make them ex post facto laws violative of the United States Constitution. For example, it was acknowledged in
Kentucky Union Co. v. Kentucky, supra, that laws of a retroactive nature imposing taxes or providing remedies for their assessment and collection are not forbidden as ex post facto laws by the Federal Constitution, since the Constitution's ban on ex post facto laws has reference to criminal punishments and does not encompass retrospective enactments of a different character.
And, the Kentucky Supreme Court has stated that the ex post facto prohibitions of the Kentucky and United States Constitutions apply only to criminal matters.
Nicholson v. Judicial Retirement and Removal Commission, Ky; 562 S.W.2d 306 (1978), appeal after remand, Ky., 573 S.W.2d 642 (1978).
Turning our attention to your questions, it is our opinion that the revocation and suspension schedule outlined in KRS 190.270(4) applies to offenses committed as of July 1, 1976, but does not apply to cases that have already been disposed of so far. Further, it is our opinion that since KRS 190.260 et seq. is very similar to 15 U.S.C. § 1981 et seq., KRS 190.270(4) does apply to federal convictions.
As to whether a $5,000 fine for a misdemeanor offense is allowed under the Kentucky Penal Code, KRS 534.040(2) and (3) state:
(2) Except as otherwise provided for an offense defined outside this code, a person who has been convicted of any offense other than a felony may be sentenced to pay a fine in an amount not to exceed:
(a) For a Class A misdemeanor, $500; or
(b) For a Class B misdemeanor, $250; or
(c) For a violation, $250.
(3) This section does not apply to a corporation. (Emphasis added.)
And, KRS 534.050 states:
(1) For an offense defined in this code a corporation convicted of an offense may be sentenced to pay a fine in an amount not to exceed:
(a) For a felony of any class, $20,000; or
(b) For a Class A misdemeanor, $10,000; or
(c) For a Class B misdemeanor, $5,000; or
(d) For a violation, $500; or
(e) Double the amount of the defendant's gain from commission of the offense, whichever is the greater.
(2) For an offense defined outside this code for which no special corporate fine is specified, a corporation convicted of an offense may be sentenced to pay a fine in an amount not to exceed:
(a) $20,000, if the offense when committed by an individual has an authorized term of imprisonment in the penitentiary; or
(b) $10,000, if the offense when committed by an individual has an authorized term of imprisonment of not less than ninety (90) days nor more than twelve (12) months; or
(c) $5,000, if the offense when committed by an individual has an authorized term of imprisonment of less than ninety (90) days; or
(d) $500, if the offense when committed by an individual has no authorized term of imprisonment; or
(e) Double the amount of the defendant's gain from commission of the offense, whichever is the greater.
(3) For an offense defined outside this code for which a special corporate fine is specified, a corporation convicted of the offense may be sentenced to pay a fine in the amount specified in the law that defines the offense.
Thus, it is our opinion that a person or a corporation may be fined $5,000 for a misdemeanor based upon the above.
Finally, it is our opinion that since the statute on tampering with odometer, KRS 190.260 et seq., is civil in nature, the provision of KRS 190.270(4) which provides that the revocation and suspension schedule shall be retroactive to offenses committed as of July 1, 1976, is not violative of the ex post facto prohibitions of the Kentucky and United States Constitutions.
Please feel free to contact us if you have any further questions.