Request By:
Paul Luersen
General Manager
Galt House, Executive Inn
Executive West
Fourth Street at River
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion as to the apparent inconsistencies between HB 542 and SB 293 enacted by the 1982 General Assembly.
Ordinarily, we do not give formal opinions to private individuals, but inasmuch as the subject matter is of such importance to many affected by the legislation (which includes your hotels) , we deem it advisable to make an exception in this case.
Generally, HB 542 deals only with state minimum wages and amends KRS 337.275(1) to raise the basic minimum wage from the present $2.15 per hour to $2.60 per hour. Subsection 2 of that statute, permitting a credit for employees receiving tips of $20 or more per month was not amended.
In SB 293, which is entitled "an Act relating to alcoholic beverage control," several sections are amended to allow for Sunday liquor sales in certain counties and cities of various classes, and urban county governments in hotels, motels, restaurants (which have a seating capacity of 100 people and which receive at least 50% of their gross annual income from the sale of food), convention centers, commercial airports with 500,000 annual passenger arrivals or departures, and race tracks.
Section 1 of the Act (SB 293) amends KRS 244.290 to include a new subsection 5, to wit:
"Any hotel, motel, restaurant operation, convention center or commercial airport which sells liquor on Sunday shall pay each of its employes wages at a rate of not less than the minimum wage as set forth in KRS 337.275(1), the provisions of KRS 337.275(2) and KRS 337.010(2)(c)(vi).
"No employer shall use all or part of any tips or gratuities received by employes toward the payment of the statutory minimum wage as required under KRS 337.275(1). Nothing, however, shall prevent employes from entering into an agreement to divide tips or gratuities among themselves." [The reference to KRS 337.010(2) (c) (vi) is incorrect. It should be 337.010(2) (a) (vi)].
New subsection 5 appears to require the payment of state minimum wages by hotels, motels, restaurant operations, convention centers, or commercial airports which sell liquor on Sunday, even though the state minimum wage law excludes such entities from any minimum wages if gross annual sales, exclusive of excise taxes, do not reach $95,000. Further, the state minimum wage law now allows such entities who are covered to credit up to half the minimum wage for tipped employees.
With these inconsistencies in mind, you ask certain questions:
"(1) Does the amendment to Senate Bill 293 apply to all counties containing cities of the first and second class or a city located therein as well as urban county governments? If not, does this not make the amendment unconstitutional?"
In view of our response to question (2), we feel it is unnecessary to reply to the first question.
"(2) Is Representative Van Horn's amendment germane to the title of Senate Bill 293?"
Section 51 of the Kentucky Constitution provides:
"No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."
The case law interpreting this section is as varied and as inconsistent as the various subjects dealt therein. The older cases tend to be more restrictive holding that various subjects were not germane to the title, whereas the later cases tend to be more liberal in holding that they were germane.
For example, in Miller v. Louisville, Ky., 321 S.W.2d 237 (1959), the Court indicated that the section must be liberally construed in the light of modern legislation.
In Kentucky Municipal League v. Commonwealth Dept. of Labor, Ky., 530 S.W.2d 198 (1975), it was held that a section dealing with overtime pay was an adjunct to minimum wages so as to reasonably be a part of the title, "An Act relating to minimum wages."
However, in McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977), the Court held that a bill entitled, "An Act relating to health care malpractice insurance and claims" was not "health care" but rather "insurance and claims" and since "insurance" and "claims" were restricted by the modifying adjective "malpractice" which was further restricted by the term, "health care, " used in an adverbial sense, the title reached only such subjects as had some reasonable relationship to medical malpractice claims or insurance. In short, parts of the act did not satisfy the constitutional provision that no law shall relate to more than one subject, which shall be expressed in the title.
We cannot state with certainty what a court might decide based upon the variances in past case law. We can only consider the basis for the existence of Section 51 in the Constitution. Its apparent raison d'etre is to apprise a legislator of what generally is contained in a bill and is meant to prevent the inclusion of "sleeper" or two or more non-related subjects within the same piece of legislation. This constitutional section becomes more important as legislators attempt to "piggy back" dying or dead bills on one subject on a viable piece of legislation successfully wending its way through the legislative process.
The obvious purpose of SB 293 is to permit liquor sales on Sundays in certain industries and counties containing larger cities. That is why the title reads: "An Act relating to alcoholic beverage control."
However, subsection 5 deals with minimum wages and requires the payment of such in industries which operate on Sunday, and further disallows tip credits, even though the minimum wage law excludes certain industries and permits tip credits.
And, as we interpret the amendment dealing with minimum wages in that bill, the language would permit an interpretation that would require the payment of minimum wages in such industries, despite the language of the minimum wage law itself, not just on Sundays, but every other day as well.
The amendment in subsection 5 is, thus, startlingly more pervasively broader than control of alcohol beverages. It deals with an entirely different subject not contained in the title of SB 293 and actually amends the minimum wage law in KRS Chapter 337 quite extensively.
The result violates the very language contained in Constitution Section 51. We cannot conceive of a greater violation of the proscription of Section 51 than the amendment in subsection 5 of Section 1 of SB 293.
Therefore, in our opinion, subsection 5 of Section 1 violates Section 51 of the Constitution of Kentucky. However, such a violation would not per se invalidate SB 293 entirely.
KRS 446.090 provides:
"It shall be considered that it is the intent of the general assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the general assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the general assembly. "
SB 293 can be administered without the provisions of subsection 5, and the latter is completely separate and independent of the rest of the bill. This fact further bolsters our belief that subsection 5 is inconsistent with the purpose and title of the bill itself.
Inasmuch as we have reached the conclusion that subsection 5 violates the Kentucky Constitution, it is unnecessary to answer the remaining questions contained in your inquiry.