Request By:
Mr. Lloyd Berry
Mason County Jailer
Maysville, Kentucky 41056
Opinion
Opinion By: Steven L. Beshear, Attorney General; BY: Charles W. Runyan, Assistant Deputy Attorney General
You tell us that counsel of the Department for Human Resources has taken the position that food service operations conducted by Kentucky County Jailers for county jail prisoners are not exempt from the payment of a $10.00 permit fee as required by KRS 219.021(2) and (4).
You request an opinion as to whether or not that position is correct.
KRS 219.021(2) provides that except as otherwise provided in subsection (4), "each application for a permit to operate a hotel or food service establishment shall be accompanied by a fee of ten dollars." (Emphasis added).
Subsection (4) of that statute reads:
"(4) Private, parochial, and public school cafeterias or lunchroom facilities through the 12th grade and all facilities operated by the department for human resources, bureau of corrections and operated or licensed by the department for human resources shall be exempt from the payment of fees, but shall comply with all other provisions of KRS 219.011 to 219.081 and the state food service code."
KRS 219.021(1) provides in part that "no person shall operate a hotel or food service establishment without first having obtained a permit to operate from the department" [DHR]. (Emphasis added).
It is obvious that a county jail is not a "hotel" , since the building is not held out to the general public as a place where sleeping accommodations are furnished to the public. The jail's residents are composed of persons charged with or convicted of crime. See definition of "hotel" in KRS 219.011(4). The remaining question is whether or not a county jail's food service to its prisoners constitutes a "food service establishment" , as envisioned in KRS 219.011 et seq.
KRS 219.011(3) defines "food service establishment" as follows:
"As used in KRS 219.011 to 219.081:
* * *
"(3) 'Food service establishment' means any fixed or mobile commercial establishment that engages in the preparation and serving of ready-to-eat foods in portions to the consumer, including, but not limited to: restaurants; coffee shops; cafeterias; short-order cafes; luncheonettes; grills; tearooms; sandwich shops; soda fountains; taverns; bars; cocktail lounges; nightclubs; roadside stands; industrial feeding establishments; private, public or nonprofit organizations or institutions routinely serving food; catering kitchens; commissaries; or similar places in which food is prepared for sale or service on the premises or elsewhere with or without charge. It does not include food vending machines or establishments serving beverages only in single service or original containers."
While the definition of "food service establishment" includes "private, public or nonprofit organizations or institutions routinely serving food" , the term "food service establishment" has engrafted on it this language at the outset: "Any fixed or mobile commercial establishment. " (Emphasis added). Thus KRS 219.011 addresses only commercial establishments routinely serving food. In the total context of KRS 219.011(3) the words "institutions routinely serving food" add nothing to the concept "establishment" used at the outset of the subparagraph. "Institution", as such, is not defined. Webster's 3rd New International Dictionary, Unabridged, gives, as one of several definitions of "institution", this: "An establishment, especially of a public character." The words "commercial establishment" establish a controlling category in connection with the list of associated words which follow and describe establishments included in the phrase "food service establishment" . A word is always construed in connection with the words with which it is associated. Carson v. Shelton, 128 Ky. 248, 107 S.W. 793 (1908). In considering the language "institutions routinely serving food" in its association with "any fixed or mobile commercial establishment" , the Supreme Court of Virginia in Bd. of Sup'rs of Albemarle Co. v. Marshall, 215 Va. 756, 214 S.E.2d 146 (1975) at p. 150, wrote this: "Moreover, where a word is used in different sections of a statute and its meaning is clear in all but one instance, the same meaning will be attributed to it elsewhere unless there be something in the context which clearly indicates that the legislature intended some other and different meaning." Thus it is important that the definitional statute, KRS 219.011(3), be construed as a whole in order that the interrelated language of the subsection be considered a single integrated subsection and in order to harmonize all of its language. Daviess Cty. v. Snyder, Ky., 556 S.W.2d 688 (1977).
A county jailer is mandated to furnish the jail prisoners with proper food and lodging. KRS 71.040. The dieting fees are paid mostly by the state under KRS 64.150.
In construing the definition of "food service establishment" in KRS 219.011(3), we must look to the subsection as a whole. Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112 (1944). Further, literal language contained in some part of a statute in apparent conflict must surrender to the general purpose of the legislature as gathered from all parts of the statute. Oates v. Simpson, 295 Ky. 433, 174 S.W.2d 505 (1943).
In reading all of subsection (3) of KRS 219.011, defining "food service establishment" , and noting the phrase "commercial establishment" at the outset, it is our opinion that the permit system was designed to place hotels and other "commercial food establishments" under a permit and regulatory system. County jails, in providing food for prisoners, do not come under the definition of "food service establishment" . The county jail is not a "commercial food establishment. " Thus KRS 219.011, et seq., has no appliction to county jails in connection with their food service to prisoners. When a statute defines words used therein, we must look to the legislative definition rather than the dictionaries or common usage. George Wohrley, Inc. v. Commonwealth, Dept. of Rev., Ky., 495 S.W.2d 173 (1973). In addition, suppose the county jailer does not get a permit. Then would the jailer be still required to feed the prisoners, regardless? The answer is that the jailer must feed the prisoners, regardless of a permit. KRS 71.040. The court wrote in George v. Alcoholic Beverage Control Board, Ky., 421 S.W.2d 569 (1967) 571, that ". . . A statute must not be interpreted so as to bring about an absurd or unreasonable result." Requiring county jailers to get a permit for serving food to prisoners would seem to be an absurdity. Moreover, a county jail is not a food service establishment even in its ordinary sense. It is primarily a place of detention and incarceration.
We want to make it clear that the exception to the food service permit provision under our conclusion relates only to county jails. Thus this conclusion should not be extended, by any analogy, to some other food serving organization. It can be seen that the underlying purpose of such licensing system is to protect the consumer of the general public, not jail inmates. The General Assembly's policy as to jail inmates is expressed succinctly in KRS 71.040, which states that the county jailer shall treat prisoners humanely " and furnish them with proper food and lodging during their confinement." (Emphasis added). That criterion is sufficient to afford the prisoner an adequate and safe diet within the confines of his constitutional rights.
Until and unless the legislature amends the statutes by explicitly bringing county jails under its operative effect, it is our opinion that the view expressed herein is the better construction of the statute. OAG 75-636 is hereby withdrawn.