Request By:
Mr. Vic Hellard, Jr., Director
Legislative Research Commission
State Control
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In your recent letter, you discussed a concern raised by the Subcommittee for Occupations and Professions of the Interim Joint Committee on Business Organizations and Professions regarding the Kentucky Board of Barbering. According to your letter, the board imposed a fine on an individual who was not licensed by the board but had applied for licensure. You then requested an opinion from this office regarding the following questions:
1. Does the Board of Barbering, under the statutes cited or any other provision of law, have the authority to impose a fine or any other penalty against an individual who is not a licensee of the Board?
2. Does the fact that the individual has made application for license give the board such authority, and if so, under what provision of law?
In regard to administrative agencies in Kentucky, the courts have determined that they are:
. . . creatures of statutes and must find within the statute warrant for the exercise of any authority which they claim. [Citation omitted.] The Department [now Natural Resources Cabinet] can neither add to the requirements established by the legislature for the issuance of a permit nor can they exercise authority not vested in it.
Department for Natural Resources and Environmental Protection v. Stearns Coal and Lumber Company, Ky., 563 S.W.2d 471 at 473 (1978).
The above-stated principle found in the Stearns Coal Company case has long been recognized in Kentucky. In fact, a decision that is close on point in regard to your first question and which was cited for authority in the Stearns case is Johnson v. Correll, Ky., 332 S.W.2d 843 (1960). In that case, the question was whether the Kentucky State Board of Embalmers and Funeral Directors had the authority to revoke the certificate of registration of an apprentice funeral director. The statute in question provided for that board to revoke, suspend or refuse to issue or renew any license issued to a funeral director. The court in Johnson held that the board lacked the authority to revoke the certificate since the statute at issue spoke only to a license of a funeral director. According to the court:
The board was authorized only to administer the law as written. It is not empowered to add to or subtract from the statute. Powers not conferred are just as plainly prohibited as those which are expressly forbidden. When powers are given to be performed in a specified manner, there is an implied restriction upon the exercise of those powers in excess of the grant. [Citation omitted.]
Id. at 845.
The court went on to hold that the Legislature had clearly defined in statute the class of persons over which the board had authority and what actions could be taken against those individuals. The court determined that the statute failed to provide the board with any authority to revoke the certificate. Id.
In applying the principles cited from the Stearns and Johnson decisions to your question, one must first review the statutes at issue to determine the authority given to the board by the Legislature.
In reviewing the provisions of Chapter 317, the board is granted jurisdiction over an individual who is a licensed barber, an apprentice to a licensed barber, an operator of a barber shop or school, a teacher of barbering, or one seeking to obtain one of the previously noted licenses. Additionally, the Chapter forbids anyone from engaging in the practice of barbering, teaching or operating a barber shop or school for barbers unless he or she is licensed by the board. However, the Board of Barbering, just as the Board of Embalmers and Funeral Directors in the Johnson case, is not specifically empowered to impose any penalty or fine against an individual who is not referred to in Chapter 317.
In response to your second question, it is the opinion of this office, based upon the previously cited cases, that the board does have some limited authority over an individual who has made application for license. Specifically, KRS 317.590 establishes grounds allowing for the board to refuse to issue a license to an applicant. In addition, if one is presently practicing as an apprentice and seeking to be licensed as a barber, such license could be revoked if the apprentice is proven to have violated any of the provisions of KRS 317.590.
As to the extent of the penalties that may be imposed by the board, KRS 317.590 gives the board the power, under certain circumstances, to refuse to issue or renew a license or to revoke or suspend or place in probation such licenses as are issued by the board. That statute does not give the board the power to impose fines, except to the extent that:
The licensee may have the alternative, subject to the approval of the board, to pay, in lieu of part or all of the days of the suspension period, a payment of not less than twenty-five dollars ($ 25) per day and not to exceed five hundred dollars ($ 500) total.
KRS 317.590(2).
Although KRS 317.991 includes fines and imprisonment as penalties that may be imposed on any person who violates any provision of Chapter 317, it does not give the Board the authority to impose those penalties. This conclusion comes from a plain and simple reading of the statute as a whole. See Barnes v. Department of Revenue, Ky.App., 575 S.W.2d 169 (1978) and Department of Motor Transportation v. City Bus Company, Ky., 252 S.W.2d 46 (1952). Indeed, this statute does not specifically grant any authority to the board. Therefore, under the Johnson decision, the Board is given no authority by this statute to impose these penalties. Moreover, it is beyond argument that the Board is without authority to imprison anyone. Because the penalties in this statute must be read together as the total sanctions that may be applied, it is clear that if the Board cannot impose imprisonment it cannot impose the corresponding penalty of a fine. Therefore, it is the opinion of this office that the Board of Barbering is without specific authority to levy a fine under KRS 317.991.
This is not meant to imply that administrative bodies are without authority to levy civil penalties which are properly provided for by statute. See KRS 315.990(2) and KRS 314.991(7).
In summary, the Board of Barbering lacks authority over any individual who does not hold any license from the board or is not an applicant for such license. Where the board has authority over a licensee or an applicant for a license, the board may refuse to issue or renew a license or revoke or suspend or place on probation such licenses as are issued; the board has no authority to levy a fine upon an individual under KRS 317.991.