Request By:
Mr. Gary C. Johnson
Pike County Attorney
P.O. Box 231
Pikeville, Kentucky 41501-0231
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney of Pike County you have some questions concerning entertainment permits issued under KRS Chapter 231.
Question No. 1:
"Since KRS Chapter 231 provides that a county judge executive may grant or deny a permit, may the county judge executive grant a permit containing certain restrictions, more specifically, restrictions concerning volume level of music, etc?
KRS 231.020 gives the county judge executive the authority to issue permits to owners or managers of places of entertainment, as defined in KRS 231.010, operated outside of corporate limits in the county. While Chapter 231 says little about the criteria for issuing permits, KRS 231.030 provides, inter alia, that no permit shall be issued to a person who will not, in the judgment of the court (no longer county court, now the county judge executive), obey the laws of the state in the carrying on of the business. The statutes contain no specific provisions relating to volume level (decibels) of music played in such places of entertainment. The court, in Veterans of Foreign Wars v. Scott, Ky., 278 S.W.2d 733 (1955) 735, wrote this:
"We think it was the intention of the Legislature in enacting KRS, Chapter 231 to allow the county judge, through the exercise of a reasonable discretion, to determine whether or not a place of entertainment should be granted a permit under the provisions of KRS 231.020."
The central answer to question no. 1 is that KRS 231.030 was not intended to list the exclusive factors to be considered in the issuing of a permit, and that the county judge executive has a reasonable discretion in the issuing or not issuing of a permit. KRS 231.070 requires the county attorney, after an application for a permit has been filed, to investigate the applicant and file a written report with the county judge executive setting forth the facts revealed on the investigation, and recommending the granting or denial of the permit.
Thus, in reading the entire Chapter 231, it is our opinion that the county judge executive, in exercising his reasonable discretion (this rules out any arbitrary action on his part), can consider all relevant facts and eyidence which reasonably relate to the issuing of a permit, bearing in mind that the public interest must be carefully weighed in the process.
The making of an unreasonable noise in a public place with intent to cause public inconvenience, annoyance or alarm, is covered as disorderly conduct in KRS 525.060. A public place includes places of amusement under KRS 525.010(3). Under KRS 231.030, the county judge executive may consider any investigative or hearing evidence on the point of whether the applicant would violate KRS 525.060(1)(b), relating to unreasonable noise. It has been written that the regulation of musical devices and dance halls are a proper exercise of the general police power of the state, in the interest of preserving order. 4 Am.Jur.2d, Amusements and Exhibitions, §§ 22 and 23, pages 144-145.
There are no statutes authorizing the county judge executive to impose express and specific conditions in issuing such permit, except that KRS 231.100 authorizes him to fix reasonable hours of operation of the place of entertainment by an appropriate executive order. See Ratliff v. Hill, 293 Ky. 36, 168 S.W.2d 336 (1943). It is understood that the applicant, if granted a permit, must obey generally all applicable laws of the state in such operation, and the permit order may recite that assumption. See KRS 231.110, for example.
Question No. 2:
"If a county judge executive has the authority to place conditions in an entertainment permit, and further those conditions of the permit are violated, what course or courses of action may the county judge executive follow to revoke the permit?"
If the person receiving the permit is charged with and convicted of violating any of the provisions of KRS Chapter 231, including other applicable criminal law, the judgment of the court of jurisdiction shall provide for the forfeiture of the permit. KRS 231.120. In such cases the permit becomes canceled and void. See KRS 231.990 for penalty section of that chapter.
Question No. 3:
"Assuming that an entertainment permit is in effect for a given person at a given location, and assuming further that an application is filed subsequently by a different individual to operate the same place of entertainment, and assuming further that the application of the second applicant is denied, what is then the status of the previous permit, i.e., is it automatically revoked by the denial of the second permit or does it continue in existence?"
We assume from this question that the first applicant will no longer be connected with the particular place of entertainment for which his permit was issued. Then if the second person applies for a permit to operate the same place of entertainment and is properly denied such permit under the due procedure set out in KRS Chapter 231, the permit issued to the first applicant would be ineffective as to its use by the second applicant, i.e., the new owner or manager. The reason is simply that the permit is issued to a human being, a person or individual. See KRS 231.020, 231.030, and 231.040. See also Easterly v. Garland, Ky., 271 S.W.2d 901 (1954). When the first applicant leaves the place of entertainment for which he holds a permit, his permit can in no way be transferred to another person. The first applicant's permit is not considered inoperative or void unless he leaves or abandons the subject place of entertainment.