Request By:
Thomas C. Carroll, Esq.
Carroll, Miller and Conliffe
1112 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning "off-road vehicles" as defined in KRS 189.860. Apparently, in Anchorage, a city of the fifth class, many of these vehicles are being operated by persons under sixteen years of age and the use of such vehicles in the city is a matter of concern to at least some of the residents.
Your first question asks as follows:
"Is it illegal per se to operate an off-road vehicle on a public way when neither the vehicle nor operator is licensed? "
KRS 189.860, enacted in 1974, pertaining to off-road vehicles, provides in its entirety as follows:
"(1) 'Off-road vehicle' means a motor vehicle capable of cross-country travel, without the benefit of a road or trail. It does not include a farm vehicle, a vehicle used for military or law enforcement purposes, a vehicle used in construction, mining, aircraft, or any other vehicle registered under state law.
(2) No person shall operate an off-road vehicle on any private or public property without the consent of the landowner, tenant, or governmental agency responsible for the property."
To answer your question concerning the requirements applicable to an "off-road vehicle" operated on a public way we direct your attention to KRS Chapter 186 dealing in part with the licensing of motor vehicles and operators. KRS 186.020(1) provides in part that before the owner of a motor vehicle may operate it or permit its operation upon a highway, the owner shall apply for registration. KRS 186.010(2) states:
"'Highway' means every way or place of whatever nature when any part of it is open to the use of the public, as a matter of right, license or privilege, for the purpose of vehicular traffic."
The definitions of "motor vehicle" and "vehicle" are set forth in KRS 186.010(4) and (7). In connection with the provisions pertaining to motor vehicle licenses, "motor vehicle" includes all vehicles which are propelled otherwise than by muscular power. For the purposes of those provisions concerning an operator's license, "motor vehicle" means all vehicles which are self-propelled. Also note the definitions of "highway, " "vehicle" and "motor vehicle" set forth in KRS 189.010(2) and (12).
In connection with the necessity of obtaining an operator's license, KRS 186.410(1) provides that every person except those exempted by KRS 186.420 and 186.430 (those exemptions are not applicable to the question you have presented) shall before operating a motor vehicle upon a highway secure an operator's license. An operator's license shall not be granted to any person under the age of sixteen, KRS 186.440(1).
Thus, in our opinion, if an "off-road vehicle" is operated on a public highway it is no longer an "off-road vehicle" and both the vehicle and the operator of the vehicle must be licensed pursuant to the terms and provisions of KRS Chapter 186. If the vehicle is operated on private property, however, neither the vehicle nor the operator would have to be licensed. See OAG 73-437, copy enclosed. We are also enclosing copies of OAG's 75-563, 74-796 and 70-416, concerning the disposition of juveniles charged with motor vehicle offenses.
Your second questions asks:
"Does the Town Council of a Fifth Class City have the power to enact an ordinance prohibiting the operation of such vehicles anyplace within the boundaries of the city?"
Under the provisions of KRS 189.680(2) an "off-road vehicle" may be operated on private property with the consent of the landowner or tenant. Since a statute is paramount to an ordinance, the city could not enact an ordinance which in effect does away with the provisions of the statute. However, while a person has a right to enjoy and use his property, such a right is seldom absolute and is often subordinate to the interests of the public welfare. While the city could not prohibit the use of an "off-road vehicle" on private property when permission has been granted by the landowner, the city might, under its police power, be able to regulate such use if the object of the regulations is to promote public order, health, safety, comfort and morals and the protection of the lives and property of persons. See McQuillin Mun. Corp. (3rd Ed.), Vol. 6, §§ 24.05, 24.12, 24.13 and 24.22.
The city would have considerably more control over the use of an "off-road vehicle" on public property under the city's control. The city can prohibit completely the use of such a vehicle on its public property which apparently means public property (such as a park) where no road or trail exists since an "off-road vehicle" is a motor vehicle capable of cross-country travel, without the benefit of a road or trail. If an "off-road vehicle" is operated on the public roads and highways of the city, thus losing its status as an "off-road vehicle," it may be restricted in its movements through the city even though vehicle and driver are registered, because of a city's exclusive control over its public ways, pursuant to KRS 94.360, which includes the power to regulate traffic on the streets of the city. See OAG's 76-205 and 72-313, copies enclosed.