Request By:
Mr. Ken Peters
P.O. Box 513
Martin, Kentucky 41649
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of November 12 in which you enclose a 1950 ordinance which levies a license fee on every exhibition, circus, show or similar amusement operating within the city limits and within one-half mile of the city limits. You also attach an executive order issued by the mayor directing the chief of police to proceed to enforce the provisions of said ordinance. Your basic question concerns the validity of the ordinance as it may apply to professional wrestling matches held within the city limits which are under the control of the Kentucky Athletic Commission. More specifically, your questions are as follows:
"1. Is this a legal ordinance that would stand up in court under present KRS?
2. If so would this ordinance cover sporting events such as professional wrestling held inside city limits for fund raising? Specifically I refer to International Championship Wrestling, P.O. Box # 24382, Lexington, Kentucky 40524, (606) 273-2221. This company has presented wrestling events over the past year in Martin (one each month) without ordinance # 62 brought up for enforcement.
3. Can the mayor of a fourth class city issue an Executive Order (copy enclosed) demand that our one man police force enforce ordinance # 62 for the first time after 31 years have passed and city council members have never reviewed the status of this ordinance?
4. If in your opinion, this is a legal ordinance as written how would it effect basketball, baseball, softball, football and other sporting events held inside city limits?"
The referred to ordinance is admittedly somewhat vague; however, we believe that it is valid with one exception and would apply under its general terms to professional wrestling conducted within the city limits. The provision extending the jurisdiction of the city to one-half mile beyond the city limits would be invalid since the statute granting such jurisdiction, KRS 86.120, was repealed in 1980 and superseded by KRS 82.082 [home rule], limiting the basic jurisdiction of all cities to their corporate limits.
KRS 92.281 and Section 181 of the Constitution authorizes all cities to require reasonable license fees for any trade, occupation or profession conducted within the city limits, and this would include, in our opinion, professional wrestling matches, in spite of the fact that KRS Chapter 229 requires the Kentucky Athletic Commission to levy an annual license fee for the conduct of professional wrestling matches in a specific area. See KRS 229.071. It is noted that under this statute requiring a state permit there is no provision prohibiting a city from also requiring a license fee for the conduct of professional wrestling matches within its corporate limits as is the case under certain state licensing acts. Thus, in absence of any such restriction, the general rule is that the city would have concurrent jurisdiction to also require a license permit to conduct professional wrestling matches within its corporate limits. In this respect we refer you to McQuillin, Municipal Corporations, Volume 9, § 26.23a, from which we quote the following excerpts:
"Where constitutional and statutory provisions may reasonably be so construed, state and municipal licensing powers are considered concurrent."
* * *
"The view has been taken that the fact that a state has enacted regulations governing an occupation does not of itself prohibit a municipality from exacting additional requirements; so long as there is no conflict between the two, both the statute and the ordinance will stand."
* * *
"In matters of purely local concern, the municipal power to regulate may be exercised even though statutes of regulatory nature have been adopted pertaining to the same subject considered as a state-wide matter of concern."
We are enclosing a copy of OAG 63-766, concerning a similar question raised with regard to a state boating licensing requirement.
With respect to the mayor's authority to issue an executive order requiring the enforcement of said ordinance, we refer you to KRS 83A.130. This statute vests all the executive authority of the city in the mayor, who is required to enforce all ordinances and supervise all departments of the city, including the police department. Under this statute he is empowered to issue executive orders to officers and employees with respect to enforcement of ordinances and regulations.
The ordinance in question does not attempt to cover, in our opinion, amateur sporting events to which your last question appears to be directed.