Request By:
Mr. Noel Thomas
News Director
3121 Frederica
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A proposed ordinance of Daviess Fiscal Court would permit the sheriff and his deputies to arrest any individual upon private property who is drunk and disorderly. At present the drunk and disorderly ordinance covers only public property.
The Daviess sheriff-elect told you such an ordinance would save his office time in getting warrants for persons who are drunk and disorderly and who have beaten their wives. He said that under current procedure it would take 60 to 90 minutes to get warrants.
Drunk and disorderly conduct is framed around the "public place" concept. See KRS 525.010(2) and (3), defining "public" and "public place. " See specifically KRS 525.060 (disorderly conduct) and 525.100 (public intoxication). Both statutes embrace the "public place" aspect.
In our opinion the fiscal court has no authority to enact an ordinance permitting arrests for drunkenness and disorderly conduct in private places. First, a fiscal court has no authority to legislate. The Supreme Court of Kentucky in a recent decision, in striking down KRS 67.083 (Home Rule) as being unconstitutional under § 29 of the Kentucky Constitution, wrote that fiscal courts are not legislative bodies under the Constitution. Fiscal Court of Jefferson County v. City of Louisville, et al., (76-604) (September 16, 1977). Here the fiscal court would be attempting to make new law. The court in Jefferson County case ruled that the legislature is prohibited by the Constitution from delegating what the law shall be. Also see
Bloemer v. Turner, Ky., 137 S.W.2d 387 (1939); and
Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974). Secondly, the fiscal court has no authority to pass an ordinance in conflict with a statute. We have already pointed out the legislative policy in this area as reflected in the new penal code. See KRS Chapter 525, above. See also the annotation on "public drunkenness" in 8 A.L.R.3d 930. The court pointed out in
Rader v. Commonwealth, Ky., 242 S.W.2d 610 (1951), that it is not an offense in Kentucky to be drunk in a private home or place. See also
Commonwealth v. Vincent, 282 Ky. 95, 137 S.W.2d 1091 (1940) 1092, of similar import.
In summary, a proposed fiscal court ordinance permitting peace officers to arrest any individual upon private property who is drunk and disorderly would be unconstitutional, since a fiscal court has no legislative power. The proposed ordinance would be an attempt to legislate. In addition, the ordinance would be squarely in conflict with statutes dealing with the offenses of drunkenness and disorderly conduct and which statutes embrace the "public place" concept only.