OAG 93-45


June 7, 1993




Mr. Henry Riekert, Member

Fayette County Chapter

Kentuckians for the Commonwealth

3036 Tuscaloosa Lane

Lexington, Kentucky 40515

RE: Reconsideration of Opinion of the Attorney General 92-142

Concerning a Proposed Lexington-Fayette Urban County

Ordinance Involving Lawn Chemical Applications

AGO Corr. No. 92-(O)-1681

Dear Mr. Riekert:

By letter of November 9, 1992, you asked that Opinion of the Attorney General (OAG) 92-142 be reconsidered.

OAG 92-142 was issued in response to a request from the Lexington-Fayette Urban County Government's legal counsel, regarding the permissibility of a proposed local lawn care chemical ordinance, in view of newly enacted state legislation (codified as KRS 217B.270) prohibiting local regulation of agriculture and silviculture pesticides.

OAG 92-142 found, in substance, that KRS 217B.270 banned local legislation regarding "agriculture and silviculture pesticides," but did not ban local regulation of pesticide use in connection with "lawns." The opinion also found, however, that KRS 67A.070(1), and KRS 67A.070(2)(b), coupled with KRS 217B.300, do ban an urban county ordinance on such subject. This was because, as explained in the opinion, KRS 67A.070(1) authorizes urban county governments to enact ordinances not in conflict with the general statutes of this state, and KRS 67A.070(2)(b) provides that urban county ordinances are deemed to be in conflict with the general statutes of the state, when a "comprehensive scheme of legislation" on the same subject (as would be addressed by a local ordinance) is embodied in those general statutes. We indicated, although without explaining the basis of our finding, that KRS 217B.300 appeared to constitute a "comprehensive scheme of legislation" regarding lawn care chemical applications - the same subject as would be addressed in the proposed urban county ordinance here of concern.

Summary of Findings

Upon reconsideration of OAG 92-142, we find that the view expressed in that opinion, that KRS 17B.300 regarding lawn chemical applications constitutes a comprehensive scheme of legislation on that subject, is correct. Accordingly, given KRS 67A.070(1) and (2)(b), the subject of lawn care chemical applications is outside the ordinance making power of the Lexington-Fayette Urban County Council. We note here that while we view KRS 217B.300 to be a comprehensive scheme of legislation regarding lawn chemical applications, an even more comprehensive scheme of legislation on that subject is shown, when other provisions of KRS Chapter 217B, related to that subject, are taken into account. Discussion follows.

Request for Reconsideration of OAG 92-142

Your request for reconsideration of OAG 92-142 asks, in particular, that the opinion be reconsidered in relation to its finding that KRS 217B.300 constituted a "comprehensive scheme of legislation" regarding lawn chemical applications, such that the Lexington-Fayette Urban County Council would not have authority to promulgate a local ordinance in that regard.

Your request indicated that, based upon the October 28, 1992, opinion of counsel for your organization (the Fayette County Chapter of Kentuckians for the Commonwealth, hereinafter "KRTC"), which accompanied your letter to this office, your group believed that KRS 217B.300 was not a "comprehensive scheme." Your organization's counsel had issued the opinion to counsel for the Lexington-Fayette Urban County Government, following issuance of OAG 92-142.

KFTC's counsel indicated, citing legal reasoning and authorities that will be discussed below, that KRS 217B.300 "does not constitute a 'comprehensive scheme,' whereby the Kentucky General Assembly has expressed an intent to 'occupy the field' of lawn chemical application regulation, to the exclusion of local units of government."

Ordinance Making Power of an Urban County Government

The ordinance making power of an urban county government in Kentucky is determined by the statutory grant of authority to an urban county. See for example, the principle cited in Boyle v. Campbell, Ky., 450 S.W.2d 265, 268 (1970), although in relation to a "municipal corporation," that such corporations (which we suggest for purposes here involved are analogous to an urban county), as instrumentalities of the state, have only such powers as have been expressly granted by the legislature, or are necessarily implied.

The statute establishing the ordinance making powers of an urban county government are set forth in KRS 67A.070. That statute provides, in pertinent part:

(1) Urban-county governments may enact and enforce within their territorial limits such tax, licensing, police, sanitary and other ordinances not in conflict with the general statutes of this state now or hereafter enacted, as they shall deem requisite for the health, education, safety, welfare and convenience of the inhabitants of the

county and for the effective administration of the urban-county government.

(2) Urban-county government ordinances shall be deemed to conflict with general statutes of this state only:

(a) When the ordinance authorizes that which is expressly prohibited by a general statute; or

(b) When there is a comprehensive scheme of legislation on the same subject embodied in a general statute.

(Emphasis added.)

It will be observed from a reading of KRS 67A.070, that, if there is a comprehensive scheme of legislation embodied in a general statute (the general statutes, KRS 446.020), on the same subject as would be addressed by a local ordinance, the local ordinance will be deemed to be in conflict with the general statutes of this state, and thus outside the ordinance making power of an urban county government.

Defining "Comprehensive Scheme of Legislation"

The question of course, is, what is a "comprehensive scheme of legislation," and is KRS 217B.300 such a scheme?

KFTC's counsel appears to equate the legal concept of "occupation of the field" with the phrase "comprehensive scheme of legislation." Counsel cites in such regard, Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970), and states that in that case:

The Court held that the Sunday closing statute did constitute a comprehensive scheme of legislation because the subject matter was both completely and fully covered by the general law and the statute expressed a state-wide public policy which by its terms indicated a paramount state concern not requiring or contemplating local action.

(Emphasis added.)

This is an incorrect characterization of the holding in Boyle. The Boyle case contains no mention of the phrase "comprehensive scheme of legislation," and there is no holding in such regard in that case.

Boyle, decided several years prior to the initial enactment of KRS 67A.070, did not involve interpretation of the meaning of the phrase "comprehensive scheme of legislation," in connection with specific statutory ordinance making authority of a local unit of government under what has come to be termed "home rule" legislation. Boyle is basically a common law preemption analysis case, rather than a "home rule" statutory interpretation case. Boyle simply is inapposite to determining the meaning of the phrase "comprehensive scheme of legislation" in the context of "home rule" statutory ordinance making authority like that involved here (KRS 67A.070).

KRS 67A.070(1)(b) does not state that a local ordinance will be deemed to conflict with the general laws of the state, as appears to be suggested by KFTC's counsel:

[I]f the legislature has intended to 'occupy the field' of regulation of a particular subject by passing statutes which amount to a 'comprehensive scheme' of regulation of such subject.

(Opinion of KFTC counsel, page 2.)

Simply put, the legislature, in passing KRS 67A.070(2)(b), did not use the phrase "occupy the field," or similar wording, in that provision. The legislature is clearly aware of the distinction between the phrases "occupy the field," and "comprehensive scheme of legislation." Such awareness is indicated by the legislature's use of the phrase "occupy the field" in KRS 77.170, and a variation of that phrase in KRS 65.870, as distinguished from the phrase "comprehensive scheme of legislation" as used in KRS 67.070(2)(b). Accordingly, in our view, the phrase "occupy the field" is not synonymous with the phrase "comprehensive scheme of legislation."

In our view the power of an urban county government to enact a local ordinance regarding a given subject must be determined, in part, by a plain reading of the express language of KRS 67A.070(2)(b). If a "comprehensive scheme of legislation" regarding a given subject is embodied in the general statutes of the state, an urban county government has no authority to enact a local ordinance in such regard, as such ordinance will be deemed to conflict with the general statutes of the state by virtue of KRS 67A.070(1) and (2). See OAG 80-467; 80-502, 83-251.

The question is, as indicated above: What constitutes a "comprehensive scheme of legislation?"

A review of several dictionaries regarding the definition of the term "comprehensive" indicates that the term is defined as including or comprehending much, or as something large in scope. It is not defined as "all inclusive."

In State v. Womach, Mo., 196 S.W.2d 809, 812 (1946) the Court, in discussing the definition of the term "comprehensive scheme," indicated:

Relators construe the term 'comprehensive' . . . as being synonymous with and meaning 'all inclusive,' but this is erroneous. The express grant of power to municipalities (subject to the limitation of consistency with the state act) is itself a negation of all inclusiveness; but the act is comprehensive in the sense of 'including much; comprising many things; having a wide scope; inclusive.' Webster's New Int. Dict., 2d Ed.

Given the definition of "comprehensive," broad, detailed, patterned legislation regarding a given subject, which addresses all or most of the key matters of significance regarding a given subject, must reasonably be viewed as a "comprehensive scheme of legislation" concerning that subject. KRS 67A.070(2)(b). The fact that legislation does not address some aspect of a subject will not render a legislative scheme other than comprehensive. See the discussion, although related to KRS 82.082, of the "city home rule statute" (which contains language similar to KRS 67A.070(2)(b)), in Whitehead v. Estate of Bravard, Ky., 719 S.W.2d 720 (1986). And see, OAG 80-467, 80-502, 83-251.

Is KRS 217B.300 a Comprehensive Scheme of Legislation?

KRS 217B.300 defines certain terms associated with lawn chemical applications, including, among others, application, application for hire, lawn, and lawn chemicals. The legislation establishes detailed notice requirements in relation to lawn chemical applications. It makes separate and specific provision for information to be given by an applicator for hire at the time of entering into a contract, placement of yard markers, the size and character of yard markers, the wording and size of lettering of yard markers, and the number of such markers, given the nature of certain properties. The legislation provides for an applicator to provide information specific to chemicals applied. Such information is to include the brand name and common name of pesticides applied, its concentration, any special instructions appearing on the product label, any other precautionary or hazard information applicable, and the name and state applicator license or certificate number of the individual making the application. Further, provision is made for advance notice of an application to be available upon request to a customer or neighbor whose residence adjoins a customer. Lastly, a penalty is established for violation of these requirements.

As indicated by a consideration of issues related to lawn chemical applications that are treated by KRS 217B.300, which is expressly specific to lawn care applications, the statute appears to address, in a broad and detailed, patterned way, most or many of what appear to be key areas of concern in relation to lawn chemical applications. KRS 217B.300 is, therefore, in our view, a "comprehensive scheme of legislation" related to lawn chemical applications.

This view should not be taken as indicating that issues addressed in KRS 217B.300 could not be addressed in a more extensive or different way, or that there are not other issues related to lawn chemical applications that might be addressed by the legislation, or even that the existing provisions are adequate. Our observation here is simply that the major topical areas associated with lawn chemical applications appear to be addressed by KRS 217B.300, such that that provision would be considered a "comprehensive scheme f legislation" related to lawn chemical applications.

Additionally, while we find KRS 217B.300 to be, in and of itself, a "comprehensive scheme of legislation" regarding lawn chemical applications, the subject of lawn chemical applications is addressed even more comprehensively, though not under that specific heading, when viewed from the perspective of the requirements of KRS Chapter 217B, in addition to those in KRS 217B.300, that relate to lawn chemical applications. Chemicals (and their application) that would be applied to lawns are encompassed within other provisions of KRS Chapter 217B, which addresses pesticide use and application. The definition of "pesticide" applicable to KRS Chapter 217B appears to encompass virtually any chemical that would be used in a lawn care application. Requirements are established for applicator and operator licensing (217B.060, 217B.070, 217B.080), and for record keeping related to pesticide applications (which includes lawn chemical applications) (KRS 217B.150).

Indicative of the comprehensiveness of KRS Chapter 217B, which encompasses lawn chemical applications, is KRS 217B.030, which states:

The purpose of this chapter is to regulate in the public interest, the use and application of insecticides, fungicides, herbicides, defoliants, desiccants, plant growth regulators, nematocides, rodenticides, and any other pesticides designated by the department by regulation.

"Department" in the above quoted statutory section is to the Kentucky Department of Agriculture, which, pursuant to KRS 217B.020, is directed to administer the provisions of KRS Chapter 217B. The statement of purpose contained in KRS 217B.030, in our view, evidences legislative intent to comprehensively address the subject of pesticide use and application, which, as noted, encompasses lawn care applications. KRS 217B.020 vests the duty of administering such comprehensive scheme of legislation with the state.

For the reasons indicated, we believe the view expressed in OAG 92-142, that KRS 217B.300 constitutes a "comprehensive scheme of legislation" on the subject of lawn chemical applications, was correct. We reaffirm that opinion as explained here. Accordingly, in our view, the Lexington-Fayette Urban County Council does not have authority to enact a local ordinance regarding lawn chemical applications. KRS 67A.070(1), KRS 67A.070(2)(b). OAG 80-467, 80-502, 83-251.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

GRG:par

c: Wayne Waddell, Esq.

Corporate Counsel

Lexington-Fayette Urban County Government

200 East Main Street

Lexington, KY 40507

Joe F. Childers, Esq.

P. O. Box 782

Frankfort, KY 40602