Request By:
The Honorable Mark Brown
State Representative
170 Washington Street
Brandenburg, Kentucky 40108
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Martin Glzer, Assistant Attorney General
You have asked this office whether Senator Benny Ray Bailey's amendment (1) to HB 527 affects its constitutionality. You have not indicated which sections of Kentucky's Constitution might be involved, so we must make certain assumptions in replying to your request.
HB 527 originally provided in Section 1 that any licensed physician or osteopathic physician from any state could certify that a child has been immunized against certain diseases in order to admit that child to school.
The questioned amendment covers a completely different area in Section 2 by excluding from the need to be licensed of:
(g) Personal care homes, as defined in KRS 216.750(2), located in any county containing over seven hundred fifty (750) square miles. If the local public health officer makes the determination that any personal care home with under sixteen (16) beds, in such county, maintains adequate safety and health standards the cabinet for human resources shall issue a license to operate the personal care home.
Section 2 deals with exceptions to the need to obtain a certificate of need, while Section 1 deals with who can certify that a child has been immunized in order to allow that child to enter school.
At first blush Section 2 is unlike Section 1 and might run afoul of Section 51 of the Kentucky Constitution which forbids more than one subject in a bill which shall be expressed in the title. However, HB 527's title is "An Act relating to public health. "
We believe that both sections are germane to the subject "Public Health. " Each deals with it in a different way. Therefore, Section 51 is not violated.
We have greater difficulty when we consider Sections 59 and 60 of the Kentucky Constitution. Section 59 precludes local and special legislation of certain subjects. Section 60 precludes special or local acts exempting from the operation of a general act any city, town, district, or county.
Section 2 of the Act excludes personal care homes located in any county over 750 square miles. Such a requirement does not cover counties containing cities of certain classes (which is usually permissible). (However, the Court struck down a statute providing a method for changing school district boundaries in counties containing a city of the first class as special legislation in Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 572 S.W.2d 496 (1971)). The questioned amendment to HB 527 limits its applicability to counties of certain area sizes, not contemplated or permitted by the Constitution of Kentucky itself.
In Jefferson County Fiscal Court v. Trager, 302 Ky. 361, 194 S.W.2d 851 (1946), the Court held that counties may be classified and special laws enacted for their government when the subject being dealt with has special applicability to the particular class to which it relates; but when there is no sound basis for applying special legislation to a particular class, the attempt to do so violates Sections 59 and 60 of the Kentucky Constitution.
Thus, in our view, the attempt to exclude licensing of personal care homes only in counties containing over 750 square miles is such an attempt. According to Rand McNally 1984 Commercial Atlas and Marketing Guide, 115th Edition, page 327, only Pike County with 782 square miles fits that description.
Such a classification is not one authorized by the Constitution (such as first to sixth classes of cities or counties containing such classes), but appears to earmark the exception only for one county (Pike) without any rational basis for doing so. Therefore, such an arbitrary classification is special and local legislation. Section 2 of HB 527 violates Sections 59 and 60 of the Kentucky Constitution.
Since the remaining Section 1 can be separated from Section 2 without destroying the Act itself, Section 1 is not affected thereby. KRS 446.090.