Request By:
Hon. Christina Heavrin
Director of Law
City of Louisville
Department of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: Chris Gorman, Attorney General; Samuel J. Floyd, Jr., Assistant Attorney General
This is in response to your letter of December 6, 991, concerning the above-referenced ordinance which amends Chapter 98 of the Louisville Code of Ordinances to prohibit "discriminatory interference" with an individual's person or property based on that individual's race, religion, sexual orientation, ethnicity, gender and/or disability or health-related condition. Ordinance No. 281 is intended to diminish acts of discrimination, intimidation and terror by providing an administrative procedure for civil redress through the Louisville and Jefferson County Human Relations Commission.
In your letter you ask if Ordinance No. 281 conflicts with KRS Chapter 344, the Kentucky Civil Rights Act, which confers statutory authority upon cities and counties to prohibit discrimination. Specifically, you want to know whether the General Assembly has delegated authority to cities and counties "to create rights to be free from discriminatory or biased conduct." It is the opinion of this office that the General Assembly has delegated such authority to cities and counties. Additionally, we believe that Ordinance No. 281 does not conflict with KRS Chapter 344, because that chapter expressly grants to cities and counties the authority to adopt and enforce ordinances prohibiting "all forms of discrimination." KRS 344.300(1).
Under KRS 82.082, the so-called "Home Rule" statute, municipalities may act in furtherance of a public purpose, so long as the exercise of power is not in conflict with a constitutional provision or statute. KRS 82.082(1);
Pierce v. Commonwealth, Ky., 777 S.W.2d 926,928 (1989). KRS 82.082 further provides that a power or function is "in conflict" with a statute when "it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes . . ." KRS 82.082(2).
Nothing in Ordinance No. 281 is "expressly prohibited" by KRS Chapter 344. On the contrary, KRS 344.310 states that cities and counties may create local commissions to provide for the execution within their jurisdictions of the policies embodied in Chapter 344. One such policy is articulated in KRS 344.300 which specifically authorizes cities and counties "to adopt and enforce ordinances, orders, and resolutions prohibiting all forms of discrimination . . ." KRS 344.300(1).
Furthermore, while the Kentucky Civil Rights Act does represent a "comprehensive scheme of legislation" dealing with unlawful discrimination, it is our opinion that Chapter 344 does not address "the same general subject" as Ordinance No. 281. KRS Chapter 344 prohibits discrimination only in the areas of employment (KRS344.040), housing (KRS 344.360) and public accommodation (KRS 344.120). Ordinance No. 281, on the other hand, does not deal with these areas of discrimination. Rather, its purpose is to protect persons in Louisville and Jefferson County from "tortions acts of interference with their person and/or their property motivated by hate or bias directed at classes of persons which historically have been victimized by such acts . . ." Louisville Code of Ordinances § 98.48.
While this office has previously issued an opinion (OAG 77-619) expressing concern that KRS 344.300 might constitute an impermissible delegation of legislative power, that opinion was issued prior to the enactment of KRS 82.082. The language in KRS 344.300 which provides that cities may adopt ordinances prohibiting "all forms of discrimination," is no more expansive than the clear language in KRS 82.082 which authorizes a city to "exercise any power and perform any function within its boundaries" which does not conflict with the state constitution and statutes. KRS 344.300(1); KRS 82.082. There is a presumption that the legislature is cognizant of preexisting statutes at the time it enacts a later statute.
Fiscal Court Com'rs,etc. v. Jefferson, etc., Ky.App., 614 S.W.2d 954, 958 (1981). Consequently, it must be presumed that the legislature was aware of KRS 344.300 when it enacted KRS 82.082. Also, when words in a statute -- like those in KRS 82.082 and KRS 344.300 -- are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as written.
Manning v. Kentucky Bd. of Dentistry, Ky.App., 657 S.W.2d 584, 587 (1983).
Ordinance No. 281 is not "in conflict" with the state civil rights law because that law does not expresly prohibit such an ordinance. Moreover, to date, the General Assembly has failed to enact any "comprehensive scheme of legislation" providing civil redress for the hate or bias motivated acts of intimidation and terror which the City of Louisville seeks to deter. Therefore, while this opinion is not intended as an examination of the constitutionality of every provision contained in the ordinance, we believe that Ordinance No. 281 constitutes a valid exercise of municipal power pursuant to KRS 82.082.