Request By:
Mary Ann Delaney
Assistant Commissioner of Law
Lexington Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Joseph R. Johnson, Assistant Attorney General
In your letter to this office dated November 13, 1984, you asked for an opinion whether the Lexington Fayette Urban County Government may enact an ordinance requiring all mopeds operated within Fayette County to display a sticker showing that the vehicle may only be operated by a person having a valid motor vehicle operator's license. A violation of the sticker ordinance would be deemed a misdemeanor punishable by a fine. This office is of the opinion that the proposed ordinance would be unlawful for two (2) reasons: (1) the State has preempted the field of moped regulation (a copy of OAG 84-176 is attached) and (2) there is no specific legislative authorization for the proposed ordinance.
Where the state has occupied the field of prohibitory legislation on a particular subject, local government lacks authority to legislate with respect thereto. Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970). Violations involved here are of Sections 2 and 59 of the Kentucky Constitution prohibiting arbitrary and special legislation and the due process clause of the United States Constitution. See also Martin v. City of Greenville, 312 Ky. 292, 227 S.W.2d 435 (1950); City of Bowling Green v. T & E Electric Contractors, Inc., Ky., 602 S.W.2d 434 (1980).
This office is not unmindful of the recent Supreme Court decision of Commonwealth v. Do, Inc., Ky., 674 S.W.2d 519 (1984) which held that a local health department could regulate lead-based paints in dwelling units in spite of state entry into the field. However, in that case the state had authorized local actions and encouraged local programs. We do not find a comparable situation in the area of moped regulation. Unlike Commonwealth v. Do, Inc., preemption is applicable herein.
Although we are in agreement that the problem of unlicensed moped operators must be addressed, this is a matter for the Kentucky General Assembly and not Lexington Fayette Urban County Government.
If we can be of further assistance, please advise.