Request By:
Mr. David Evans
City Administrator
Box 31
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 1 concerning the right of the city to levy a loading and unloading license (included as part of the city's occupational license ordinance) , on all liquor distributors delivering alcoholic beverages within the city limits.
The occupational license ordinance, a copy of which you enclose, levies a fixed license on various professions and occupations operating within the city limits. Included is the license required of all commercial trucks using the streets of the city for parking while loading and unloading.
The case of Commonwealth v. Day, 287 KY. 176, 152 S.W.2d 597 (1941), involved the question of whether a municipality may place a tax on a nonresident liquor wholesaler, jobber or distributor, who delivers his products to customers within the municipality by means of his own trucks, and the court answered this question in the negative. This decision was based on the fact that the state license granted wholesalers and distributors the incidental right to transport such beverages from their licensed place of business to licensed retailers in their own trucks under the terms of KRS 243.120, 243.160, and 243.180, and as a consequence no municipality had the power to impose a tax on a wholesaler or distributor for the privilege of transporting their product to a retailer located within the city. Of course as the court pointed out the city may impose a business license fee authorized under KRS 243.070.
On the other hand, in the case of Detner Smith Co. v. Town of Elsmere, 308 Ky. 442, 241 S.W.2d 765 (1948), the court distinguished its decision in the Day case, and held that where the city ordinance was simply a motor vehicle license tax on all trucks and automobiles using the city streets in the conduct of their business, even though they were nonresidents, all such vehicles would be subject to a license fee as a police measure for use and upkeep of city streets, including liquor distributors and wholesalers delivering alcoholic beverages regularly into the city to licensed retailers. In this regard, we are enclosing copies of OAG 66-231 and OAG 72-416 dealing with this question. The latter opinion goes into some detail as to how the court made the distinction above referred to which was apparently dependent on the type of ordinance and the purpose for which it was enacted.
Under the circumstances, and in view of the fact that you have presented, in effect, an occupational license ordinance in which an amendment was added concerning commercial vehicles' loading and unloading (which frankly does not appear relevant to the general subject), we have serious reservations that it could be considered in the nature of a general license fee to be levied on all vehicles for the use of city streets as held in the Elsmere case to be applicable to liquor distributors.
On the other hand, if the city has an automobile license ordinance requiring all vehicles regularly using the city streets, whether they be operated by residents or non-residents and regardless of the type of business engaged in, we believe that such a license would be valid as against wholesale liquor distributors using the streets for delivering alcoholic beverages to retail outlets in the city under the holding of the Elsmere case. We suggest that you discuss this matter with your city attorney.