Request By:
Mr. James G. Tripp
City Attorney
12 Court Street
P.O. Box 827
Mt. Sterling, Kentucky 40353
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The City Commission of the City of Frenchburg, Kentucky, has directed you, as City Attorney, to draft a replacement for a city ordinance which prohibits businesses of any type from playing amplified music for a profit. You referred to OAG 84-39, dealing with that ordinance, in which we concluded that such an absolute prohibition of such musical activities based upon an assumption of an existing nuisance was not permissible under certain statutory and constitutional law therein cited. The proposed ordinance expressly repeals the subject existing ordinance, 6-4-83.
You request our evaluation of the proposed replacement ordinance in terms of its constitutionality.
Paragraph 2 of the ordinance permits roadhouses, music barns, and other businesses playing amplified music as a profit, to operate within the city limits of Frenchburg, subject to the opening and closing provisions of another ordinance. Under the latter ordinance, the opening time for the above named entertainment businesses is 8:00 a.m. on any day. The closing time for such businesses is by 12:00 a.m. Monday through Friday and by 2:00 a.m. Saturday and Sunday.
The general regulatory authority of the city, as relates to this proposed ordinance, is found in KRS 82.082, and McQuillin, Municipal Corporations, Vol. 9, § 26.150.
On the face of it, the adoption by reference of the opening and closing scheme of another ordinance, as applied to the subject commercial entertainments, is justified in terms of the city's authority to impose reasonable regulations to "prevent indecency, vulgarity, disorder, or violence." McQuillin, Municipal Corporations, § 24.209 and § 24.213. It also appears that such restrictions have a reasonable relation to the public safety, welfare or convenience. Such opening and closing provisions would serve a public purpose. Cf.
Marshall v. City of Louisville, Ky., 244 S.W.2d 755 (1951). See McQuillin, above, § 24.212 on closing hours applied to dance halls. Thus the city can, under its police powers and general power statute, enact reasonable regulations as to hours of business of the businesses specifically designated, involving a fair classification, where the regulations are reasonably related to a legitimate object of the police power, i.e., the public health, safety, morality or welfare. McQuillin, § 24.328. Thus the regulation of hours must directly tend to benefit the public health, morals, safety or the general welfare, if it is to pass muster in terms of sections 1 and 2 of the
Kentucky Constitution. City of Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1, 178 S.W.2d 847 (1944) 848. We believe it does pass that test.
Paragraph 3 of the proposed ordinance provides:
"Roadhouses, music barns, and other premises playing amplified musical performances as a profit making enterprise shall be deemed to be a nuisance only if the effect of such businesses on adjoining premises would be deemed by a reasonable person to be a nuisance. "
The state, under its police powers, may, through the General Assembly, declare what shall be deemed a nuisance, and it has the authority to prevent or abate a nuisance, subject to constitutional limitations.
Kentucky Alcoholic Beverage Control Bd. v. Jacobs, Ky., 269 S.W.2d 189 (1954) 191. Under that analogy, it is our opinion that your city legislative body has the authority to declare what a nuisance is, subject to constitutional limitations. See also KRS 82.082. The case of
City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (1941), reflects such city authority, although there was a statute in effect which expressly gave certain class cities the right to define a nuisance. However, we think the general power statute, KRS 82.082, plus the historically accorded police power of your city is sufficient to authorize its right to define a nuisance by ordinance.
The broad definition of a public nuisance includes maintaining a condition of things which is prejudicial to the health, safety, comfort, property, sense of decency, or morals of the citizens at large.
Maum v. Commonwealth, Ky., 490 S.W.2d 748 (1973) 749. A nuisance is public where it affects the rights enjoyed by citizens as a part of the public, i.e., rights to which every citizen is entitled.
City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237 (1941) 239. A public nuisance has been defined as the doing of or the failure to do something that injuriously affects the safety, health, or morals of the public, or works some substantial annoyance, inconvenience, or injury to the public, although it is not, of course, essential that the injury, annoyance or inconvenience should affect the whole body of the public. It will be sufficient if it operates upon such members of the public as are brought into contact with the conditions that constitute the nuisance.
Commonwealth v. South Covington & C. St. Ry. Co., 181 Ky. 459, 205 S.W. 581 (1918) 583. The courts have had difficulty in the attempt to capture a workable definition of nuisance, especially since the nuisance allegation must be carefully weighed against the peculiar facts of a given case.
Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181 (1960) 184.
We are of the opinion that paragraph 3 does not lay down a definition of public nuisance which conforms to the case law cited above. The alternative to the defining of a public nuisance by ordinance would be the city's bringing civil actions to abate any alleged public nuisances arising out of the operation of such places of entertainment. This conclusion considers paragraphs 3, 4, and 5 as hanging together. An additional difficulty with the adjoining property implications is that it is too narrow in terms of the case law definitions of a public nuisance.