Request By:
Mr. John A. Nefzger
Menifee County Attorney
P.O. Box 56
Frenchburg, Kentucky 40322
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
An ordinance (enacted June 4, 1983) of the City of Frenchburg, a sixth class city, declares roadhouses, music barns and other businesses playing amplified musical performances within the city to be nuisances. An exemption to the ordinance was granted to churches, events scheduled for charity and other non-profit activities. The city has requested your office to obtain a formal opinion from this office as to the legality or constitutionality of the ordinance.
Concerning general regulatory powers of cities, see the general power statute, KRS 82.082. See McQuillin, Municipal Corporations, Vol. 9, § 26.150, to the effect that under their police power, cities can regulate and license recreational and amusement places, especially commercial places, within the city.
NUISANCES
The existence of a nuisance must be ascertained on the basis of two factors: (1) the reasonableness of the defendant's use of his property, and (2) the gravity of harm to the complainant. Louisville Refining Co. v. Mudd, Ky., 339 S.W.2d 181 (1960) 184. A common or public nuisance is one that affects the people at large, and is a violation of a public right, rather than just an individual right. City of Owensboro v. Hope, Ky., 110 S.W. 272 (1908).
In McQuillin, Municipal Corporations, Vol. 7, § 24.210, we find this:
"Without doubt a dance hall may be a public nuisance in fact, but whether it is such a nuisance depends upon the particular circumstances in each case. Thus a city cannot by an arbitrary standard declare dance halls to be nuisances irrespective of whether they are nuisances in fact. In this as in other connections an owner cannot be foreclosed of his right to a judicial determination as to whether his property is so used as to render it a nuisance. "
Elsewhere in McQuillin, at § 24.215, we find this, in connection with musical instruments:
"Accordingly, an ordinance may prohibit the playing of such instruments at any place where they disturb the peace and quiet of persons outside the premises where they are located. Also, the ordinance may prohibit the playing thereon of immoral and indecent selections. It is in order for a municipality to make sure, by periodic inspections, that juke boxes and like musical machines do not become public nuisances by reason of their being located in a part of an establishment so near a public thoroughfare as to disturb pedestrians, or by reason of being operated noisily or at improper hours or because of their playing vulgar or obscene records. . . .
"An ordinance relating to juke boxes or other mechanical musical players must, of course, be reasonable and not oppressive or discriminatory. But it is not void as discriminatory merely because it is not applicable to music stores which occasionally play phonographs or radios near their doorways to attract customers."
The case of Pfingst v. Senn, 94 Ky. 556, 23 S.W. 358 (1893), involved a dance hall in Louisville. It was maintained that the place was operated as a nuisance, since it was alleged that guests would dance in the hall to the music of string and brass bands until the hours of the morning. The court rejected the argument that a nuisance in fact existed, although the pleasure seekers might be an inconvenience or annoyance to neighbors not participating. The court, in Bruner v. City of Danville, Ky., 394 S.W.2d 939 (1965), ruled in effect that a city, regardless of regulatory power under KRS 85.150(5), cannot declare a commercial activity to be a nuisance, which is not shown to be a nuisance in fact. KRS 85.150 was repealed in 1982. Thus the court ruled against a city's absolute prohibition, allegedly under KRS 85.150(5), of any particular type of show or amusement that would otherwise be lawful, unless the circumstances are such that the restriction has a reasonable relation to the public safety, welfare or convenience. The court said that the reason for this constructtion was that the state cannot confer on a city any more authority in that respect than is embraced within its own police power.
CONSTITUTIONAL QUESTIONS
In McQuillin, above, § 24.211, it is written that municipal regulation of public dancing and dance halls must conform to state law on the subject. It must be reasonable, and not arbitrary, oppressive, or discriminatory. It must have a standard of uniform application and not leave enforcement to unbridled discretion.
The Supreme Court of the United States has recognized that musical entertainment, as well as political and ideological speech, is protected by the First and Fourteenth Amendments. Schad v. Mt. Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981); and Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 53 L. Ed. 2d 965, 97 S. Ct. 2849 (1977).
In Bykofsky v. Borough of Middletown, (U.S.D.C. Pa. -1975) 401 F.Supp. 1242, the court declared that laws must provide reasonably clear standards for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement, citing the First Amendment to the United States Constitution and the Fourteenth Amendment, guaranteeing equal protection and due process.
Classification violates the Equal Protection Clause unless the classification is rational and regulation of one class to the exclusion of other classes promotes a legitimate state interest. Wayside Restaurant v. City of Virginia Beach, 215 Va. 231, 208 S.E.2d 51 (1974).
Commercial speech, although more readily subject to reasonable regulation than the expression of ideas, beliefs and philosophy, is nevertheless protected by the guarantees of the First Amendment. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S. Ct. 1817, 1825, 48 L. Ed. 2d 346, 358 (1976).
The mere fact that the place where a method of expression may be presented happens to be a bar or cabaret does not strip it of constitutional protection. Salem Inn, Inc. v. Frank, (U.S.D. Ct., E.D.N.Y. -1974) 381 F.Supp. 859, 863.
In connection with amendments 1 and 14, under the "rational basis" test, challenged legislation must have a legitimate public purpose based upon promotion of public welfare, health or safety, and the act taken must bear rational relation to the end it seeks to further. Alladin's Castle, Inc. v. City of Mesquite, (U.S.C.A. -5, 1980) 630 F.2d 1029, 1039.
SHERIFF'S ENFORCEMENT OF CITY ORDINANCES.
While a sheriff is required under KRS 70.160 to visit and inspect any dance halls and roadhouses in his county (which is broad enough to cover dance halls and roadhouses in a city within his county), we are not aware of any general statute requiring the sheriff to enforce city ordinances involving criminal sanction. Cf. also KRS 231.130. However, KRS 70.160 does not require a sheriff to enforce a city dance hall ordinance.
CONCLUSIONS
It is our opinion as follows:
(1) Under the statutory and constitutional law cited above, the city has no authority to enact an ordinance absolutely prohibiting all such musical activities on the alleged basis of an existing nuisance. A nuisance depends upon the circumstances in each case as concerns a nuisance in fact. See Bruner v. City of Danville, Ky., 394 S.W.2d 939 (1965). On the face of it there is no showing that the absolute prohibition has a reasonable relation to the public safety, welfare or convenience of the city's citizenry.
(2) In addition, the ordinance raises grave constitutional questions relating to the protection of the First and Fourteenth Amendments to the Federal Constitution and Section 2 of the Kentucky Constitution. The law is settled that the furnishing of entertainment is covered by the First and Fourteenth Amendments. Under the facts given, the ordinance is arbitrary and oppressive in its absoluteness and absence of any standards. Thus the ordinance is illegal and unconstitutional. Under this analysis it is not necessary to deal with the exception of church and charity groups.
(3) Since the business of musical entertainment is struck down absolutely, it is our opinion that it is arbitrary and in violation of § 2, Kentucky Constitution. No where does it appear that the absolute prohibition of such musical activities has a reasonable relation to the public safety, welfare or convenience. See Bruner v. City of Danville, Ky., 394 S.W.2d 939 (1965) 941.
(4) We are not aware of any statute requiring the sheriff to enforce city criminal ordinances.
(5) It is a responsibility of the city government to study or propose some regulatory alternative.