Request By:
Michael S. Endicott
Johnson County Attorney
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
The unlawful distribution of narcotic pain medication in Kentucky has increasingly become recognized by local governments as a source of various social ills, and this recognition has recently led to efforts to address the problem through local laws. Johnson County Attorney Michael S. Endicott has requested an opinion from this office concerning the legal validity of a proposed ordinance which would ban "pain clinics" from operating in the county. Similar requests have been made on behalf of Owsley County and the City of Booneville, which are also considering ordinances of this nature. Since there appear to be no published decisions or prior opinions of this office on point, this is a question of first impression.
The ordinance in question would declare pain clinics to be "unlawful and ? a public nuisance, subject to closure and injunctive limitations by any court of competent jurisdiction." It would impose a fine of five thousand dollars ($ 5,000.00) for each day of operation of a pain clinic within Johnson County. "Pain clinic" would be defined as follows:
A business engaging in the distribution of narcotic pain medication which:
a) is not affiliated with a local hospital doing business within a 100 mile radius
b) a business that generates more than 50% of its revenue from the [sic] meeting with patients and prescribing narcotic pain medication for said parents [sic], and
c) a business that appears to have a disproportionate amount of patients receiving pain medication as opposed to receiving other medical services.
The ordinance would also authorize the county, in determining whether a business is a "pain clinic, " to consider factors including:
a) Whether the business in question provides prescription narcotic pain medication for disproportionately large number [sic] of residents not living in the immediate [Johnson County] area,
b) Whether the business at issue has a disproportionately high amount of payment for its services in cash,
c) The affiliation or lack of affiliation at issue [sic] with organizations or individuals providing other recognized methods of legitimate medical treatment for sick or injured individuals, and
d) Such other information as may be deemed relevant by any court of competent jurisdiction[.]
It is undisputed that this definition of "pain clinic" could apply to the medical practices of licensed physicians.
To the extent that the proposed ordinance affects the medical practices of physicians licensed by the Commonwealth, it is in conflict with the public policy of Kentucky as expressed by the General Assembly. "[A] municipality cannot make a nuisance that which state law expressly authorizes." McQuillin, MUN. CORP., Vol. 6A, § 24:68 (3rd ed. 2007). "An ordinance may cover an authorized field of local laws not occupied by general laws but cannot forbid what a statute expressly permits and may not run counter to the public policy of the state as declared by the Legislature." City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8, 9 (1942). Since the "practice of medicine, " as defined by KRS 311.550(10), includes "the diagnosis, treatment, or correction of any and all human conditions, ailments, diseases, injuries, or infirmities by any and all means, methods, devices, or instrumentalities," a licensed practitioner of medicine is permitted to utilize the instrumentality of narcotic pain medication within the limits of public policy as expressed by the applicable state and federal laws and regulations.
Cities and counties in Kentucky operate under their respective "home rule" statutes, KRS 82.082 and KRS 67.083. Both contain limiting provisions. KRS 82.082(2) provides that a city's "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." KRS 67.083(6) provides that "[i]f a county is authorized to regulate an area which the state also regulates, the county government may regulate the area only by enacting ordinances which are consistent with state law or administrative regulation. " This latter provision, naturally, comes into play only where the county possesses such regulatory authority in the first place.
"[W]here the state has occupied the field of prohibitory legislation on a particular subject, a municipality lacks authority to legislate with respect thereto." Boyle v. Campbell, 450 S.W.2d 265, 267 (Ky. 1970). Likewise as to counties, when "state statutes and regulations have preempted the field" on a particular subject, a county ordinance addressing the same subject is invalid. OAG 93-1.
In OAG 85-50, we summarized Kentucky's test for preemption in terms used by the Supreme Court of California in the case of In re Hubbard, 396 P.2d 809, 815 (Cal. 1964):
(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.
Thus, an urban county government could not limit local election campaign spending by ordinance, since KRS Chapter 121 (the Corrupt Practices Act) occupied the field of campaign contributions and expenditures and did not place any such restrictions on urban county races. OAG 78-97. Nor could an urban county government adopt an ordinance prohibiting "loitering for the purpose of engaging in 'an unlawful drug transaction,'" because in KRS Chapter 218A "the legislature comprehensively addressed the regulation of controlled substances" and the terms of the ordinance did not precisely conform to the statute defining "the specific unlawful acts relating to controlled substances." OAG 91-27.
In Whitehead v. Bravard, 719 S.W.2d 720 (Ky. 1986), the Supreme Court of Kentucky expressly recognized the concept of "latent" preemption. The City of Newport had enacted an ordinance imposing a quota on the number of retail beer licenses that could be issued in the city. Since the Alcoholic Beverage Control Board had been granted sole regulatory control over the issuance of such licenses under KRS Chapter 241, the Court held that the Board alone could impose a quota within the City of Newport. Although the Board had never done so, the city was not free to impose a quota under its purported police powers: "The fact that the state has not acted, does not eliminate that power. It still exists, in latent form." Whitehead, 719 S.W.2d at 724.
The Board of Medical Licensure is vested by KRS 311.565(1)(a) with the authority to "[e]xercise all the administrative functions of the state ? in the regulation of the practice of medicine [,] which shall include but not be limited to promulgation of reasonable administrative regulations enabling the board to regulate the conduct of its licensees. " Under subsection (1)(j), the Board is authorized to "[p]romulgate a code of conduct governing the practice of medicine [,] which shall be based upon generally recognized principles of professional ethical conduct," and by authority of subsection (1)(v) it may impose fines of up to five thousand dollars ($ 5,000.00) per violation. Pursuant to KRS 311.842, the Board is also responsible for licensing and regulating physician assistants.
KRS 311.595(9) prohibits a licensed physician from engaging in "dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public or any member thereof." Examples of such conduct are given in KRS 311.597, subsection (1) of which addresses situations in which a licensee:
Prescribes or dispenses any medication:
(a) With the intent or knowledge that a medication will be used or is likely to be used other than medicinally or for an accepted therapeutic purpose;
(b) With the intent to evade any law with respect to sale, use, or disposition of the medication;
(c) For the licensee's personal use or for the use of his immediate family when the licensee knows or has reason to know that an abuse of a controlled substance is occurring, or may result from such a practice;
(d) In such amounts that the licensee knows or has reason to know, under the attendant circumstances, that said amounts so prescribed or dispensed are excessive under accepted and prevailing medical practice standards; or
(e) In response to any communication transmitted or received by computer or other electronic means, when the licensee fails to take the following actions to establish and maintain a proper physician-patient relationship:
These statutes plainly charge the Board of Medical Licensure with oversight of the precise areas of conduct at which the proposed ordinance is aimed, and in such detail that we do not hesitate to find the presence of a comprehensive scheme of legislation regulating the subject matter. The public policy of the Commonwealth, as expressed by the legislature, is that the prescription of controlled substances by licensed medical professionals is to be governed by the Board within the framework of KRS Chapter 311. To whatever extent the Board might consider "pain clinics" objectionable, it has the preemptive statutory authority to regulate them, even if that power is only latent. 1
Furthermore, as we previously observed in OAG 91-27, the legislature has already "comprehensively addressed the regulation of controlled substances" in KRS Chapter 218A. Particularly relevant to the present analysis is KRS 218A.140, which imposes criminal penalties for "knowingly obtain[ing] or attempt[ing] to obtain a prescription for a controlled substance without having formed a valid practitioner-patient relationship with the practitioner or his or her designee from whom the person seeks to obtain the prescription" (subsection (3)) or "knowingly assist[ing] a person in obtaining or attempting to obtain a prescription in violation of this chapter" (subsection (4)). The Cabinet for Health and Family Services is given certain inspection and enforcement powers by KRS 218A.240 and is charged by KRS 218A.202 with "monitoring Schedules II, III, IV, and V controlled substances that are dispensed within the Commonwealth by a practitioner or pharmacist," and is further authorized by that section to provide data to various specified law enforcement and regulatory entities, including the Board of Medical Licensure. There are thus two comprehensive schemes of legislation occupying the field of prescription medicine, which the proposed ordinance would attempt to regulate on the local level.
The presence of these comprehensive schemes weighs strongly against any suggestion of implied authority for local governments to enact the type of ordinance in question. With regard to counties, "all power exercised by the fiscal court must be expressly delegated to it by statute." Fiscal Court of Jefferson County v. City of Louisville, 559 S.W.2d 478, 481 (Ky. 1977). In the case of cities, municipal powers must be granted expressly or by necessary implication, City of Louisville v. Fischer Packing Co., 520 S.W.2d 744 (Ky. 1975), and any doubt concerning the power of a municipal corporation is resolved against its existence. City of Horse Cave v. Pierce, 437 S.W.2d 185, 186 (Ky. 1969); Smeltzer v. Messer, 311 Ky. 692, 225 S.W.2d 96 (1949). Since the comprehensive statutory schemes regulating both controlled substances and the medical profession occupy the field in those areas, the overwhelming doubt they create as to the validity of the proposed ordinance must be resolved against the authority of a county or city to enact it. Accordingly, we find that such an ordinance, whether enacted by a city or a county, would be preempted by existing legislation which renders the prescription of controlled substances exclusively a matter of state concern.
Even if the proposed ordinance were not preempted, however, it would be problematic for a city or county to declare an entire category of medical clinics to be a "public nuisance. " In OAG 84-373, we summarized the existing case law relating to the definition of a public nuisance:
The broad definition of a public nuisance includes maintaining a condition of things which is prejudicial to the health, safety, comfort, property, sense of decency, or morals of the citizens at large. Maum v. Commonwealth, Ky., 490 S.W.2d 748 (1973) 749. A nuisance is public where it affects the rights enjoyed by citizens as a part of the public, i.e., rights to which every citizen is entitled. City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (1941) 239. A public nuisance has been defined as the doing of or the failure to do something that injuriously affects the safety, health, or morals of the public, or works some substantial annoyance, inconvenience, or injury to the public, although it is not, of course, essential that the injury, annoyance or inconvenience should affect the whole body of the public. It will be sufficient if it operates upon such members of the public as are brought into contact with the conditions that constitute the nuisance. Commonwealth v. South Covington & C. St. Ry. Co., 181 Ky. 459, 205 S.W. 581 (1918) 583. The courts have had difficulty in the attempt to capture a workable definition of nuisance, especially since the nuisance allegation must be carefully weighed against the peculiar facts of a given case. Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181 (1960) 184.
With regard to cities, it has been said that "a municipal corporation cannot, under its police power or its specific power to suppress nuisances, suppress in toto or in part any legitimate business, trade, or occupation which is not a nuisance per se, in fact, or under state statute." McQuillin, MUN. CORP., Vol. 6A, § 24:68.
Nuisances per se are "things, uses, and conditions so clearly nuisances that reasonable minds cannot differ as to their character as such." Id., § 24:65. Under this definition, a licensed physician's operation of a "pain clinic, " as characterized by the proposed ordinance, does not belong to the category of nuisance per se. Since there is no statute deeming "pain clinics" to be nuisances, the only category that could conceivably apply is nuisance in fact.
This office, however, has noted that "[a] nuisance depends upon the circumstances in each case as concerns a nuisance in fact. " OAG 84-39. "[A] city, regardless of regulatory power under [statute], cannot declare a commercial activity to be a nuisance, which is not shown to be a nuisance in fact, " because "the state cannot confer on a city any more authority in that respect than is embraced within its own police power. " Id. (citing Bruner v. City of Danville, 394 S.W.2d 939 (Ky. 1965)). Since the delegated police power of counties, like that of cities, can be no greater than that of the Commonwealth, the same reasoning from OAG 84-39 applies to a proposed county ordinance which would declare an entire category of commercial activity to be a nuisance as a matter of law without regard to the circumstances in individual cases. The county, therefore, would exceed its proper police powers by enacting such an ordinance.
We have also been asked whether the terms of the proposed ordinance are unconstitutional for other reasons, including the "void for vagueness" doctrine and Sections 1, 2, and 28 of the Constitution of Kentucky, or inconsistent with federal controlled substance laws, the federal Health Information Portability and Accountability Act of 1996 ("HIPAA"), or the confidentiality attached to "KASPER" reports under KRS 218A.202. While these may be matters of concern, particularly the vagueness of the ordinance's language, we do not address these additional questions because the state preemption issue is both central and unambiguous.
We fully acknowledge the scale and depth of the social problems posed by narcotics trafficking in Kentucky. Nevertheless, to the extent that the proposed action might provide a remedy, the enactment of that remedy is reserved to the General Assembly.
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