Request By:
John L. Arnett, Esq.
City Attorney
P.O. Box 847
128 West Dixie Avenue
Elizabethtown, KY 42701
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in response to your question concerning whether a fourth class city is precluded by the doctrine of preemption from enacting an ordinance prohibiting the possession of alcoholic beverages in public parks and playgrounds.
In Commonwealth v. Do, Inc., Ky., 674 S.W.2d 519, 521 (1984), quoting In Re Hubbard, 62 Cal.2d 119, 41 Cal. Rptr. 393, 399, 396 P.2d 809, 815 (1964), the court set forth a test for preemption as follows:
"(1) The subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality. "
Applying this test to the regulation of the possession of alcoholic beverages, it appears that the subject matter has not been fully covered so as to become exclusively a matter of state concern. The legislature has enacted a comprehensive scheme regulating the manufacturing, sale, and distribution of alcoholic beverages in Chapters 241 through 244 of the Kentucky Revised Statutes. See Whitehead v. Estate of Bravard, Ky., 719 S.W.2d 720, 721 (1986). However, this scheme relates primarily to the liquor industry and the control of liquor sales, not to the possession and consumption of alcohol. Furthermore, the fact that each municipality can choose whether to prohibit the sale of alcohol entirely by way of a local option election supports the contention that this subject matter has not become exclusively a matter of state concern. See KRS Chapter 242.
However, the state has also enacted statutes prohibiting alcohol intoxication or drinking alcoholic beverages in a public place, KRS 222.202, and the possession of alcohol by any person under the age of 21, KRS 244.085(3). Although KRS 222.202 would apply to a public park or playground, see KRS 525.020(3) (defining public place) , it does not go so far as to prohibit mere possession of alcoholic beverages in these areas. Similarly, KRS 244.085(3) only prohibits possession of alcohol as to those persons under the age of twenty-one. Although it seems that the subject matter has been partially covered by state law, there is no language in the statutes which clearly indicates that a paramount state concern will not tolerate further or additional local action. The General Assembly has recognized that the regulation of alcoholic beverages is a valid local concern by allowing municipalities to hold local elections to decide issues such as whether to prohibit local liquor sales and whether to permit Sunday liquor sales by the drink. See KRS Chapter 242; KRS 244.290(2).
Nor is it clear that the adverse effect on transient state citizens of a local ordinance addressing the possession of alcohol in public parks and playgrounds would outweigh the possible benefit to the municipality. "Municipal regulation is not always precluded simply because the legislature has taken some action in regard to the same subject." Do, supra at 522. Therefore, the City of Elizabethtown is probably not precluded by the doctrine of preemption from enacting an ordinance prohibiting the possession of alcoholic beverages in public parks and playgrounds.
However, even though the proposed ordinance is probably not precluded by preemption, it would be precluded if it conflicted with a constitutional provision or state statute. KRS 82.082, the Home Rule Statute, permits a city to "exercise any power and perform any function within its boundaries . . . that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute." Because the proposed ordinance would be effective only within the boundaries of the city and because one purpose of a municipality is "to promote the safety, convenience, comfort, and the common welfare of [its] citizens by establishing and maintaining those things which tend to do so and by regulating or prohibiting those things which are hurtful," Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761, 764 (1935), the remaining question is whether the proposed ordinance is in conflict with a statute or constitutional provision.
The statutory definition of conflict is set forth in KRS 82.082(2) as follows: "A power or function is in conflict with a statute if it is expressly prohibited by statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes . . . ." There is no statute that expressly prohibits a city of the fourth class from enacting an ordinance pertaining to the possession of alcohol. Similarly, the comprehensive scheme enacted by the state legislature in Chapters 241 through 244 of the Kentucky Revised Statutes which pertains to alcohol addresses only the manufacturing, sale, and distribution of alcoholic beverages. See Whitehead, supra at 721. "The mere fact that the State has made certain regulations does not prohibit local government from establishing additional requirements as long as there is no conflict between them." Do, supra at 522. The proposed ordinance does not appear to conflict with the comprehensive scheme enacted by the legislature or with the statutes prohibiting alcohol intoxication in public places and prohibiting the possession of alcohol by persons under the age of twenty-one.
Despite the fact that the City of Elizabethtown does not appear to be precluded by statute from enacting an ordinance relating to the possession of alcohol, there is case law which suggests that the proposed ordinance, as worded, would not survive a constitutional challenge. In Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383 (1909), the Court held that neither the legislature nor a city council had the authority to prohibit the possession of alcoholic beverages for personal use through the police power because "ownership and possession [of alcoholic beverages] is not in itself injurious to the public." Campbell, supra at 63. Similarly, in Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340 (1915), the court concluded that the legislature could not "prohibit . . . possession or limit the place of possession where the liquors are intended for one's own use, and, therefore, for a purpose with which the police power of the state is not concerned." Smith, supra at 234-235.
The law in other jurisdictions also seems to support this view. An Ohio court held a city ordinance prohibiting mere possession of alcoholic beverages in a public park unconstitutional. City of Kettering v. Stroup, 43 Ohio Misc. 45 335 N.E.2d 414 (1974). In City of Kettering , supra at 416, the court determined that the ordinance was invalid because "it [did] not require that possession of an alcoholic beverage in a city park either be knowingly done or be done with intent to consume it in said park . . . ." The Supreme Judicial Court of Massachusetts likewise implied that an ordinance prohibiting mere possession would be unconstitutional. See Commonwealth v. Lammi, 386 Mass. 299, 435 N.E.2d 360 (1982). The court in Lammi, supra at 361, upheld a city ordinance making it a criminal offense
either to drink any alcoholic beverage or to possess "an opened container full or partially full of any alcoholic beverages, while on, in, or upon any public way, upon any way to which the public has right of access, in any place to which members of the public have access as invitees or licensees."
However, the court cautioned that the ordinance was valid only because "[i]t [was] not targeted on mere possession, but possession of an alcoholic beverage in a public place in a condition which would permit its speedy consumption." Lammi, supra at 362.
In conclusion, although it appears that the doctrine of preemption would not preclude the City of Elizabethtown from enacting an ordinance pertaining to the possession of alcohol in public parks and playgrounds, the City probably could not prohibit mere possession of alcohol in public parks and playgrounds because the Home Rule Statute only gives cities the authority to exercise any power that is not in conflict with a constitutional provision.