Request By:
Hon. Edward L. Schoenbaechler
Goldberg & Simpson, P.S.C.
2800 First National Tower
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Alex W. Rose, Assistant Attorney General
Your letter requested an opinion concerning statutory changes made by the 1982 General Assembly concerning on-site sewage disposal systems. Your question was whether the homestead exemption in KRS 318.015(3) has any application to the re-enacted sewage disposal statutes in KRS 211.350 et seq. You stated that, in your opinion, the homestead exemption is limited strictly to Chapter 318 and the state plumbing code and has no application to Chapter 211.
KRS Chapter 318 concerns the state plumbing code and its application and enforcement by the Department of Housing, Buildings and Construction. KRS Chapter 318 does not apply to farmsteads as set out in KRS 318.015(3). Farmsteads are defined in KRS 318.010(8) as follows:
. . . a farm dwelling together with other farm buildings and structures incident to the operation and maintenance of the farm located outside the corporate limits of a municipality and not connected to a public water supply.
On-site sewage disposal systems, governed by KRS 318.310 et seq., were repealed, re-enacted and amended in KRS 211.370 by Acts 1982, ch. 392.
Control of on-site sewage systems is now under the jurisdiction of the Cabinet for Human Resources. See KRS 211.350(2) et seq. KRS 211.350(2) provides as follows:
No person, firm, or corporation shall construct, install, alter or cause to be constructed, installed, or altered, any on-site sewage disposal system subject to regulation by the cabinet without having first obtained an on-site sewage disposal permit from the cabinet. Such construction, installation or alteration shall be performed in accordance with KRS 318.010 and KRS 318.030.
The deliberate separation of a single section of a statute into two sections and the application of a restriction to the first section, but not to the second, indicates that a similar restriction contained in another section of the statute was intended to apply only to the first section and not to the second section. See U.S. v. McClure, 305 U.S. 472 (1939). It is generally recognized that when an entire clause in an old statute is omitted from the new, it is the reasonable inference that the legislature did not intend that the clause should thereafter be embraced in the terms of the statute. Grieb v. Jefferson County Fiscal Court, 249 Ky. 659, 61 S.W.2d 285 (1933).
There is a deliberate separation of KRS Chapter 318 from another section of the statutes, KRS Chapter 211. The application of the restriction applies only to KRS Chapter 318. The restriction has not been restated in KRS Chapter 211, therefore, the exemption is strictly limited to KRS Chapter 318 and has no application to KRS Chapter 211.