Request By:
Mr. Joe R. Gluck
301 New York Road
Cumberland, Kentucky 40823
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in answer to your letter of February 28 in which you relate that the city of Cumberland has recently enacted an ordinance levying an occupational license on all trades, occupations and businesses that do business within the city. You enclose a copy of the ordinance which lists in detail the various trades, occupations and businesses together with the license fee, said license fee differing in amount depending on the type of business or occupation listed. You further relate that the ordinance fails to list standards concerning the reason for charging different yearly rates for the various businesses and professions. In addition, you state that there was no public study or discussion concerning this matter. Under the circumstances you present the following questions:
"Can a city government, under the Laws of the Commonwealth of Kentucky, enact a discriminatory license tax on the privilege to do business without any legally acceptable and fundamentally fair standards, studies or competent information whatsoever for making the distinctions in the rates charged?
Is the ordinance, as enacted, of and by itself, sufficient for the setting out of standards used in establishing the differing license tax rates?"
The occupational licensing ordinance to which you refer is a standard ordinance which, in our opinion, is perfectly legal. The city is not required to relate reasons or standards for determining the fee levied against a particular type of business as long as the fee is reasonable and not discriminatory. Each type of business represents a separate classification and must, of course, be charged the same fee. However, the fee can vary depending on the business classification. Referring to the case of Wyman v. City of Newport, 153 Ky. 487, 156 S.W. 109 (1913), the court cited Section 181 of the Constitution as authorizing the Legislature to in turn authorize municipal corporations to impose license fees on the various trades, occupations and professions, which the court said included any type of business carried on within the city. The court also pointed out that while the license fee imposed by the city is now specifically authorized by KRS 91.281 it must be uniform on the class singled out for licensing, but that the city may nevertheless classify the various occupations differently provided the classification is made on a reasonable and natural basis. For your information we quote the following from the Wyman case:
"We have also held in many cases that persons engaged in the same trade, occupation, or business may be classified, if the classification is made upon a natural and reasonable basis, and a different license fee imposed upon each class. We have also held in many cases that when a license tax is imposed upon a class of persons engaged in a particular business, trade, or occupation that all persons engaged in such trade, occupation, or business are subject to the tax, and that it must be uniform upon the class singled out for taxation."
We also cite the case of City of Louisville v. Fischer Packing Company, 520 S.W.2d 744 (1975), upholding an occupational license fee ordinance as well as the enforcement requirements within the ordinance assessing a penalty declared to be necessary in order to exercise the express statutory grant of authority. See also Leet Furniture Co., v. City of Richmond, Ky., 357 S.W.2d 329 (1962).
As we initially stated, the ordinance as a whole appears to be perfectly valid and the fees based on classification appear to be reasonable and not arbitrary. However, this question would be one for the courts to determine in the final analysis. We do note one possible error, and that is relating to the fee assessed against banks. State and national banks are exempt from occupational license taxes under the terms of KRS 92.300(2) and as held in OAG 82-502. We also might add that there is no requirement on the part of the city to hold a public hearing or study prior to the enactment of an occupational ordinance.