Request By:
Mr. Keith D. Baker
Attorney at Law
500 West Vine Place
106 West Vine Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
On behalf of the University of Kentucky Student Government Association, you have requested an opinion from our office regarding the following issue:
[Whether the] . . . dormitory rooms in the residence halls situated on the campuses of the state universities including, but not limited to, the University of Kentucky [are classified] as private places for purposes of the drinking of alcoholic beverages by students attending said universities who have attained the age of twenty-one (21) years.
In OAG 74-39, it was noted that there is no statute which expressly states that alcoholic beverages may not be consumed or possessed in a school building. However, that opinion concluded:
"A state university campus is a public place and the school buildings located thereon are public buildings within the meaning of KRS 244.020. Therefore, the drinking of alcoholic beverages on the campus or in the buildings is a violation of the statute . . ."
That opinion made no distinction between dormitory rooms within residence halls and other campus buildings for purposes of the prohibition against consumption of alcoholic beverages. In light of recent legislation it has become important to address this issue.
In an effort to clarify the laws, the 1986 General Assembly repealed KRS 244.040 and enacted new provisions under KRS 222.202, as follows:
"(1) A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property or unreasonably annoy persons in his vicinity.
"(2) A person is guilty of drinking alcoholic beverages in a public place when he drinks an alcoholic beverage in a public place, or in or upon any passenger coach, or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, or waiting room."
In KRS 222.201 it is specifically stated that the definition of "public place" as used in KRS 222.202 has the same meaning as in KRS 525.010 except as to establishments licensed under KRS Chapter 243 to sell alcoholic beverages by the drink. Section 3 of KRS 525.010 reads:
"'Public place' means a place to which the public or a substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools, places of amusements, parks, places of business, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place. "
It will be observed that the statute enumerates certain places the legislature considers to be public places, schools being one such example, but the dispositive language of KRS 525.010(3) is ". . . a place to which the public or a substantial group of persons has access . . ." This is the test to determine whether a place is a public place for the purpose of liability for public alcohol intoxication or consumption.
The Kentucky Supreme Court has on several occasions addressed the issue of whether a place is a "public place" within the purview of the statutes prohibiting public intoxication or consumption of alcohol. As early as 1923, in
Lewis v. Commonwealth, Ky., 247 S.W. 749 (1923), the Court said: "Manifestly that language [public place] means a place exposed to the public, and where the public gather together or pass to and fro . . ." Id. p. 751. See also OAG 84-185, citing
Ginter v. Commonwealth, Ky., 262 S.W.2d 178 (1953);
Williams v. Commonwealth, Ky., 261 S.W.2d 807 (1953); and, Mahon v. Bueschel Sewer Construction District #1, Ky., 355 S.W.2d 683 (1962).
The courts have also held that certain places are "public places." The most obvious nonpublic place is a person's private residence. There is no question that a person may become intoxicated or consume alcoholic beverages within the privacy of his own residence without violating any statute. See
Radar v. Commonwealth, Ky., 242 S.W.2d 610 (1951), and
Commonwealth v. Vincent, Ky., 137 S.W.2d 1091 (1940). In Lewis, supra, and
Tackett v. Commonwealth, Ky., 261 S.W.2d 298 (1953), the Court stated that being drunk in a hotel room would not subject one to arrest because a room in a hotel is not a public place. Additionally, while including the hallways and lobbies, the 1986 General Assembly excluded the rooms of hotels and apartment houses used as residences from the definition of "public place. " See KRS 525.010(3). It appears to have been the intent of the legislature when it excluded these places (hotel rooms and apartment dwellings) that the prohibitions of KRS 222.202 should not apply in places primarily utilized for residential purposes.
In determining the "public place" issue, dormitory room in a residence hall situated on a state university campus may be considered analogous to an apartment or hotel room. A dormitory room is primarily utilized for residential purposes. It is not a place to which the public or a substantial group of people has access, but instead it is a place where a student has an expectation of privacy, subject to access to the room by his or her roommate and subject to U.K. dormitory lease provisions.
It is reasonable to conclude that any reference to schools, schoolhouses, or school buildings made by the legal authorities cited within this opinion directly relates to those places and structures on university campuses which are accessible to the general public and student population, including but not limited to, classroom and other instructional buildings, administrative offices, and cafeterias.
In sum, it is the opinion of this office that a dormitory room on a state university campus is not a "public place" within the definition found in KRS 525.010(3). Consequently, a person of legal drinking age, twenty-one (21) years or older, cannot be held criminally liable under KRS 222.202 for drinking alcoholic beverages or being alcohol intoxicated in his or her dormitory room in a residence hall situated on a state university campus.
Finally, it must be remembered that this opinion does not concern or affect the landlord/ tenant relationship between state universities and their student dormitory residents. As landlords, state universities continue to have the authority to include as a term of the dormitory room rental agreement a prohibition as to or restrictions on the consumption of alcoholic beverages within the premises leased, even though the student resident may be 21 years old or older.