Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter relates to Landlord-Tenant legislation. It reads:
"A question has arisen relating to the Landlord-Tenant Act of Kentucky, which was declared unconstitutional by the Supreme Court of Kentucky, because it only was applicable to counties containing a city of the first class and urban counties.
The General Assembly is considering enacting legislation to make the Landlord-Tenant Act applicable state-wide. The question that has been raised is whether local governments under home rule may enact a Landlord-Tenant Act by ordinance. "
As you say, the Supreme Court of Kentucky in Miles et al v. Shauntee, (82-SC-641-DG), October 12, 1983, declared the Uniform Residential Landlord and Tenant Act, KRS 383.505 - 383.715, to be unconstitutional, on the ground that, since it applied only in Jefferson and Fayette Counties, it constituted special legislation, in violation of Sections 59 and 60 of the Kentucky Constitution. See KRS 383.715.
POWER OF CITIES TO ENACT LANDLORD-TENANT LEGISLATION
KRS 82.082 provides:
"(1) A city may exercise any power and perform any function within its boundaries, including the power of eminent domain in accordance with the provisions of the Eminent Domain Act of Kentucky, that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.
(2) A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of KRS Chapters 95 and 96."
The basic rule as to municipal powers was stated in
Louisville &. N.R. Co. v. City of Hazard, 304 Ky. 370, 200 S.W.2d 917 (1947) 918:
"A municipality possesses only such powers as are expressly granted to it, those which are necessarily implied in or incident to the powers expressly granted, and those which are essential to the accomplishment of the declared objects and purposes of the corporation."
The more recent case of
City of Louisville v. Fischer Packing Company, Ky., 520 S.W.2d 744 (1975) 746, pointed out that political subdivisions of Kentucky possess only those powers which have been granted to them expressly plus those powers necessarily implied or incident thereto as to enable them to carry out the expressed powers. See
City of Bowling Green v. T & E Elec. Contr., Ky., 602 S.W.2d 434 (1980).
It is our opinion that, under the broad powers of KRS 82.082, and considering the public purpose to be subserved, cities in Kentucky may enact a Landlord-Tenant ordinance, dealing with the important landlord-tenant relationships. However, the cities must, of course, observe any applicable Federal and Kentucky constitutional restrictions, and must be in harmony with any existent and applicable state statutes.
Bower v. City of Louisville, 269 Ky. 350, 107 S.W.2d 238 (1937) 239. This is written in part in McQuillin, Municipal Corporations, Vol. 5, § 15.20, concerning conformity to state and federal laws:
"It is fundamental that municipal ordinances are inferior in status and subordinate to the laws of the state. Consistently, it is a general rule, sometimes expressly enunciated by the state constitution, statutes, or city charters, that ordinances regulating subjects, matters, and things upon which there is a general law of the state must be in harmony with that state law, and in any conflict between an ordinance and a statute the latter must prevail, unless under the statutes or law of the state the ordinance plainly and specifically is given predominance in a particular instance or as to a particular subject matter. The conformity with the law of the state required of an ordinance is a positive conformity and not a mere negative obligation not to run counter to that law. Thus, an ordinance must have some relation to a lawful purpose - to promote the health, welfare, safety, or morals."
Further, in connection with an ordinance's conformity to existing constitutional and statutory law, see McQuillin, Municipal Corporations, Vol. 5, § 15.22. See OAG 80-467.
Since there is at present no effective constitutional landlord-tenant act in existence, the uniform Residential Landlord and Tenant Act of 1974 offers no impediment to such city ordinance treatment. See also
Gibson v. City of Hardinsburg, Ky., 247 S.W.2d 31 (1952). In Reynolds, Local Government Law, Ch. 6, Sec. 43, we find this concerning the problem of state law as a pre-emption, as relates to local legislation:
"Pre-emption may occasionally be expressly stated in legislation, but more often it is only implied - and the courts are left with determining when the implication is present. Two important considerations are: (1) The comprehensiveness and pervasiveness of the state regulation. Has the state legislation thoroughly covered all likely activities and objects of regulation within the general subject matter? (2) The need for uniform treatment throughout the state. Is this an area where it is desirable to have a single, all-encompassing scheme of regulation, so that local laws - not just local laws that conflict with the state's, but any local laws - would unduly complicate the picture?"
We have noted H.B. 224, relating to overhauling the landlord-tenant legislation in Chapter 383, now with the Judiciary Civil Committee.
In connection with the lawful purpose of promoting the health, welfare, safety, or morals, it is readily conceivable that cities in general, as compared to rural areas, are subject to more complex problems in connection with tenant housing, especially as relates to demographical and sociological factors.
POWER OF COUNTIES TO ENACT LANDLORD-TENANT LEGISLATION
The basic powers of fiscal courts are contained in KRS 67.080 and 67.083. KRS 67.083(3)(j) and (l) refer to ordinances concerning the construction of housing, demolition of structures presenting a hazard to public health and safety, redevelopment of housing, providing education and other services to residents of publicly assisted housing, and adoption of technical codes governing new construction, renovation or maintenance of housing. However, we find no express statute authorizing fiscal courts to enact landlord-tenant legislation, as such. Our conservatism is based upon the restrictive language of
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977). In that case the court wrote this at page 482:
"The metallic thread which history and tradition weave through the warp and woof of our Constitution is that while the General Assembly may grant governmental powers to counties it must do so with the precision of a rifle shot and not with the casualness of a shotgun blast. The thoughtful, purposeful and deliberate delegation of a known power is required of the General Assembly. It is here that KRS 67.083 fatally differs from the myriad of effective specific grants of power which appear in other statutes.
Sec. 181 of our Constitution provides that the General Assembly may delegate to counties the power to impose and collect license, franchise and occupational taxes. At the time the General Assembly passed this statute it had to know that by the terms of Sec. 181 these powers effectively passed to the counties. To that extent and no further, its action was thoughtful, purposeful and deliberate. As to those powers not so enumerated, the grant is legislation in a vacuum and a nullity."
The court, in Fiscal Court v. City of Louisville, in a footnote, cited examples of effectively described powers: KRS 67.080; 70.540; 70.570; 97.791; 100.117; and, 100.201. The decision was handed down prior to the 1978 and subsequent amendments to KRS 67.083. However, under the strict guidelines in Fiscal Court v. City of Louisville, we are unable to make out a sufficiently described county power to enact landlord-tenant ordinances. See
Rea v. Gallatin County Fiscal Court, Ky., 422 S.W.2d 134 (1967), declaring the "strict construction" concept in considering powers delegated to political subdivisions.
To our knowledge, the appellate courts have not yet applied the strictness found in the above county cases to cities in connection with KRS 82.082. To be pragmatic we must cross that bridge when we get to it.
It is true that a municipal corporation possesses no powers except those expressly granted or those essential to the accomplishment of its declared objectives and purposes.