Request By:
Christie Cruce
Lyon County Property Valuation Administrator
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Matt James, Assistant Attorney General
Statutes construed: KRS 132.220; KRS 132.487; KRS 132.488(1); KRS 376.010(1)
Opinion of the Attorney General
Lyon County Property Valuation Administrator Christie Cruce has requested an opinion from this office whether the docks of a marina are considered a nonpublic portion of a commercial building for the purposes of KRS 132.220(3). We are of the opinion that the docks of a marina are considered land and not buildings for the purposes of KRS 132.220(3) and are subject to administrative search in the absence of the owner, unless they are sufficiently structurally analogous to buildings.
KRS 132.487 subjects all motor vehicles to an ad valorem tax, and KRS 132.488(1) subjects all motorboats to an ad valorem tax in the same manner. KRS 132.220(1) requires all taxable property to be listed, assessed, and valued as of January 1 each year. KRS 132.220(3) provides in relevant part:
(3) If the owner fails to list the property, the property valuation administrator shall nonetheless assess it? The property valuation administrator, his or her employee, or employees of the department may physically inspect and revalue land and buildings in the absence of the property owner or resident? however, with the exception...of the nonpublic portions of commercial buildings shall not be conducted in the absence or without the permission of the owner or resident.
Since motorboats are taxable property, they must be listed, assessed, and valued, and if the owner does not do so, the property valuation administrator must assess the motorboats. The property valuation administrator may conduct inspections in the absence of the owner, unless those properties fall within a few clearly defined exceptions, which include the nonpublic portions of commercial buildings. Recently, several marinas have been refusing access to their docks to property valuation administrators seeking to assess the motorboats docked there on the grounds that the docks are a nonpublic portion of a commercial building under KRS 132.220(3), and cannot be searched without the permission of the owner. Ms. Cruce contends that the docks are neither nonpublic nor buildings for the purposes of KRS 132.220(3), and are thus subject to warrantless administrative searches under that statute. We agree that in most cases docks do not constitute buildings and are subject to administrative search by property valuation administrators, unless they are sufficiently analogous to buildings and affirmative steps have been taken to bar the public.
The docks of a marina are a "structure" and not a "building," unless they are a permanent structure with a foundation, walls, and a roof. Black's Law Dictionary defines a "building" as "a structure with walls and a roof, esp. a permanent structure. " BLACK'S LAW DICTIONARY (9th ed. 2009). In Barren River State Boat Dock, Inc. v. K & R Mfg. Co., 167 S.W.3d 676 (Ky. App. 2005), the Court of Appeals addressed the issue of whether a marina was a "house or other structure" for the purposes of a mechanic's lien under KRS 376.010(1):
The record indicates the marina was merely affixed to the land by steel cables. Moreover, the marina was capable of being moved and was, in fact, moved on numerous occasions. From these facts alone, we conclude the marina is not permanently situated or erected upon the land and is not an "other structure" within the meaning of KRS 376.010(1).
Id. at 679. Barren River indicates that if a marina is simply affixed to the land and not permanently situated upon it, it will not be considered in the class of buildings. Rather, floating docks are considered "structures." U.S. v. Angell, 292 F.3d 333, 337 (2d Cir. 2002). However, if the docks are such that they are structurally similar to buildings, with permanent foundations, frame structure, and roofs, then they will be considered buildings. Yellow Freight System v. U.S., 538 F.2d 790, 795-98 (8th Cir. 1976).
While floating docks are not considered buildings, they are considered extensions of land. Victory Carriers, Inc. v. Law, 404 U.S. 202, 206-7 (1971); see also South Port Marine, LLC v. Gulf Oil Ltd. Partnership, 234 F.3d 58, 63-64 (1st Cir. 2000) (surveying cases). As such, since KRS 132.220(3) grants property valuation administrators the power to physically inspect land in the absence of the property owner, they may similarly inspect floating docks in the absence of the property owner. The exception in KRS 132.220(3) for nonpublic areas of commercial buildings will not apply in most cases because floating docks do not constitute "buildings." Should the docks be sufficiently permanent structures to be considered buildings, the exception for nonpublic areas of commercial buildings would have its normal application.
Assuming that particular docks are sufficiently analogous to buildings, whether they are "nonpublic" is a highly factual question. In the context of administrative search, "the constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case." U.S. v. Robinson, 414 U.S. 218, 238 (1973). As general guidance, administrative searches "are generally less intrusive than one which could potentially lead to criminal sanctions, and are accordingly more likely to be tolerated. Jacob v. Township of West Bloomfield, 531 F.3d 385, 389-90 (6th Cir. 2008). "A commercial owner does "not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business," Maryland v. Macon, 472 U.S. 463, 469 (1985), and inspectors may enter in the same manner as any other member of the public. 1064 Old River Rd. v. City of Cleveland, 137 Fed.Appx. 760, 766 (6th Cir. 2005). "What is observable by the public is observable, without a warrant, by the Government inspector as well." Marshall v. Barlow's, Inc., 436 U.S. 307, 315 (1978). To render an area nonpublic, "the occupant of a commercial building. .. must take the additional precaution of affirmatively barring the public from the area." U.S. v. Hall, 47 F.3d 1091, 1095 (11th Cir. 1995). Ms. Cruce claims that the marina owners have started placing locked gates on the entrances to their docks. We cannot say whether placing locked gates on the entrances constitutes affirmatively barring the public from the area, and must leave such factual determinations to the courts.
In conclusion, the docks of a marina are considered as an extension of the land and not as buildings for the purposes of KRS 132.220(3), unless they are sufficiently structurally analogous to buildings. They may be searched in the absence of the owner under KRS 132.220(3), and do not fall under the exception in that subsection for nonpublic areas of commercial buildings. If the docks are sufficiently analogous to buildings, whether any particular area is nonpublic is a factual determination for the courts.