Request By:
Cap Hershey, Vice-Chairman
Kentucky State Racing Commission
P. O. Box 1080
Lexington, Kentucky 40588
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Frank F. Chuppe, Assistant Deputy Attorney General
You have asked for an opinion of this office regarding the authority of the Racing Commission to license persons or corporations involved in selling concessions at thoroughbred race meetings in the Commonwealth of Kentucky.
In responding to your question, we look first at KRS 230.310 which states, in part, as follows:
Every person not required to be licensed under KRS 230.300 who desires to participate in thoroughbred or Appaloosa racing at a thoroughbred race meeting in the Commonwealth as a horse trainer, jockey, apprentice jockey, agent, stable employe, racing official, association employe, or employe of a person or concern contracting with the association to provide a service or commodity and which requires their presence on association grounds during a race meeting, or veterinarian, farrier, horse dentist, or supplier of food, tack, medication, or horse feed, shall first apply to the commission for a license to participate in such activity on association grounds during a race meeting. No person required to be licensed by this section may participate in any activity required to be licensed on association grounds during a race meeting without a valid license therefor. (Emphasis added.)
A similar restriction appears at Title 810 KAR 1:003. The only question is the meaning of the term, "supplier of food, " which is found in KRS 230.310 and 810 KAR 1:003, Section 1, and whether its definition would include concessionaires. Since it is clear that the term does refer to something other than a supplier of horse feed (that function being separately described in the statute) we believe it is reasonable for the Commission to interpret the term, "supplier of food, " as including vendors operating on racing association grounds during the race meetings.
In addition, the above construction of the term "supplier of food" notwithstanding, KRS 230.300 also authorizes licensure of any person or concern "contracting with the association to provide a service or commodity and which requires their presence on association grounds during a race meeting." We view this section as further authority for the Commission to license concessionaires.
We do note that two prior Attorney General Opinions relate to your question, with somewhat different answers. First in OAG 70-494, it was opined that the Kentucky Racing Commission may regulate access to a racing meeting by wholesale liquor distributors and truck drivers through the requirement of an occupational license. OAG 70-494 cited KRS 230.310 as the authority for such a license requirement.
By contrast, OAG 78-731 stated that the authority of the Commission to regulate activity at a thoroughbred race meeting only related to that conduct directly related to racing. It specifically excluded food and drink concessions from this category. However, OAG 78-731 did not cite KRS 230.310 which, we believe, controls this question.
It is admittedly a correct legal principle that an administrative agency cannot promulgate regulations or otherwise assume authority outside of its statutory purpose.
Portwood v. Falls City Brewing Company, Ky., 318 S.W.2d 535 (1958). Nonetheless, since KRS 230.310 specifically provides for the Commission to license suppliers of food, the licensing of concessionaires would not only seem to be permitted, but a function which the Commission is obligated to perform under the statute.
The restrictions on such licensing would be governed by 810 KAR 1:003, as well as by any more specific regulations promulgated by the Commission on this subject. To the extent that OAG 78-731 conflicts with this Opinion, it is withdrawn.