Request By:
Hon. Norrie Wake
Fayette County Attorney
207 North Upper Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Samuel J. Floyd, Jr., Assistant Attorney General
Re: Proposed Adoption of a Local Ordinance Prohibiting Loitering for the Purpose of Engaging in an Unlawful Drug Transaction
You recently wrote a letter to our office in which you asked for an opinion regarding a proposed local ordinance which would prohibit loitering for the purpose of engaging in "an unlawful drug transaction. " You asked whether existing state legislation dealing with loitering preempts local authority to adopt such an ordinance.
We are of the opinion that the ordinance which you are considering would run afoul of KRS 67A.070 by attempting to enter an area already comprehensively addressed by the Kentucky Penal Code, as well as by KRS Chapter 218A which deals with controlled substances.
KRS 67A.070 defines the authority of an urban-county government to enact ordinances. Subsection (1) of KRS 67A.070 provides in pertinent part:
(1) Urban-county governments may enact and enforce within their territorial limits . . . ordinances not in conflict with the constitution and general statutes of this state . . .
While subsection (1) appears initially to impose no necessary legal impediment to the loitering ordinance you propose, subsection (2) forecloses any attempt by an urban-county government to redefine crimes already specified by the General Assembly. It defines "conflict" as follows:
(2) Urban-county government ordinances shall be deemed to conflict with general statutes of this state only:
(a) When ordinance authorizes that which is expressly prohiibted by a general statute; or
(b) When there is a comprehensive scheme of legislation on the same subject embodied in a general statute.
It seems clear to us that the ordinance you propose would run afoul of the preemption statute by attempting to enter a field already comprehensively occupied by the legislature. In
Pierce v. Commonwealth, Ky., 777 S.W.2d 926 (1989), the Kentucky Supreme Court addressed this issue in the context of KRS 82.082, the so-called "Home Rule" statute for cities, which contains language identical to that applicable to urban-county governments under KRS 67A.070. In striking down a local sodomy solicitation ordinance where -- as here -- the local ordinance attempted to define the offense more broadly than the state penal code, the Supreme Court noted:
. . . Thus the ordinance enacted by the City of Florence directly addresses criminal conduct which is comprehensively addressed by state statutes. Moreover, the ordinance is subject to a more expansive interpretation allowing for the possibility of abusive arrest and prosecution not likely under state law. As the General Assembly chose the language used in the statute, we must conclude it did so intentionally and we cannot approve an ordinance which amounts to an enlargement of the conduct proscribed by the act of the General Assembly.
KRS 525.090 is the Penal Code section which contains the language intentionally chosen by the General Assembly to define the offense of loitering. That statute presently provides that a person is guilty of loitering when he "Loiters or remains in a public place for the purpose of unlawfully using a controlled substance. . . ." KRS 529.090(1)(b). In our opinion, the more expansive language contained in your proposed ordinance which would prohibit loitering for the purpose of "engaging in an unlawful drug transaction, " is exactly the kind of enlargement of statutorily proscribed conduct which is rendered impermissible by KRS 67A.070 and the decision in Pierce .
Similarly, we are of the opinion that the "unlawful drug transaction" language of the proposed ordinance infringes upon KRS Chapter 218A, in which the legislature comprehensively addressed the regulation of controlled substances. KRS 218A.140 defines with particularity the specific unlawful acts relating to controlled substances. The local ordinance you are considering references illegal drug conduct in terms which do not conform to the precise definitions set forth in that statute. As stated in the Boyle decision mentioned in your letter, "where the state has occupied the field of prohibitory legislation on a particular subject, a municipality lacks authority to legislate with respect thereto."
Boyle v. Campbell, Ky. 450 S.W.2d 265 (1970).
Therefore, we believe that the adoption of the loitering ordinance you propose is prohibited by KRS 67A.070, because such an enactment would be in conflict with existing state legislation by attempting to redefine statutory crimes. If, as you suggest in your letter, there is any void in the present comprehensive legislative schemes dealing with loitering and illegal drug activity, it is the opinion of this office that this concern lies within the province of the General Assembly.