Request By:
Mr. George L. Johnson
Director, Division of
Weights and Measures
Department of Agriculture
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 15 in which you seek clarification of what constitutes a tobacco warehouse building subject to licensing under KRS 248.290. In connection with your question you relate the following:
"The Division of Weights and Measures has been enforcing the Kentucky Tobacco Warehouse Law under KRS 248 for many years. KRS 248.290 requires that a license fee be paid on each warehouse building operated as a place of sale for tobacco. Many warehouses will have two or more floors, buildings, etc., where tobacco is sold, and each floor or building may or may not have an office. Sometimes there will be one general office serving two or more different buildings."
In addition to the above, you refer to a recent inquiry from the Home Tobacco Warehouse of Richmond, Kentucky, in which it questions the department's right to license separately four (4) of its warehouses located under four separate roofs. The pertinent part of inquiry is as follows:
"The Home Tobacco Warehouses in Richmond, Kentucky were built in the late 1920's and early 1930's. They were built in four separate locations under four separate roofs.
In prior years we have paid $25.00 per warehouse or a total of $100 per year.
"Under the new 1978 General Assembly ruling we feel that Home Tobacco Warehouse Co., Inc. is being treated unfairly due to the fact that our increase will be $1000.00 more per year as compared to $250.00 per year for most other warehousing concerns in the State of Kentucky.
"Home Tobacco Warehouse Co., Inc., although operating four warehouses in Richmond, Kentucky, is only one corporation not four separate ones. Due to this fact we feel that our $1,000.00 increase in the warehouse license fee is unjustifiable."
Subsection (1) of KRS 248.290 as amended in 1978 reads as follows:
"(1) Each warehouse shall pay to the department an annual license fee of two hundred seventy-five dollars ($275). A license fee shall be paid on each warehouse building operated as a place of sale of tobacco, regardless of the number of such buildings owned by any individual, corporation, firm or other type of management organization." (Emphasis added).
KRS 248.010(4) defines the term "warehouse" to mean "any tobacco warehouse operating as a place of sale for tobacco in this state."
Referring to Words and Phrases, Vol. 5A, and the case of Vogel v. Reed Supply Co., 277 N.C. 119, 177 S.E. 2d 273, it was held that when the word "building" is strictly construed as in the context of a licensing statute, it does not embrace parts or segments of a building or structure.
KRS 248.290 clearly requires that a license fee be paid on each individual or separate warehouse building operated as a place of sale for tobacco regardless of the number of such buildings owned by any individual or corporation, and regardless we believe of where the general office is located.
The Home Tobacco Warehouse Company, which owns four (4) separate warehouses, clearly would now be required under the terms of KRS 248.290 to pay a separate license fee of $250 for each warehouse building regardless of the fact that the company owns all four buildings, and regardless of the fact that there may only be one general office, provided, of course, that tobacco is sold at each separate warehouse. It is conceivable some tobacco warehouse buildings are used solely for storing tobacco in which case no license would be required for such buildings.