Kentucky Concealed Carry Coalition, Inc v. City of Pikeville, Kentucky

RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0437-MR
KENTUCKY CONCEALED CARRY
COALITION, INC. APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
v. HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 18-CI-00602
CITY OF PIKEVILLE, KENTUCKY;
JAMES A. CARTER; PHILIP R.
ELSWICK; BOARD OF
COMMISSIONERS CITY OF
PIKEVILLE, KENTUCKY; AND
CITY OF PIKEVILLE EXPOSITION
CENTER CORPORATION APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL,
JUDGES.
CLAYTON, CHIEF JUDGE: The Kentucky Concealed Carry Coalition, Inc.
(“Appellant”) appeals from the Pike Circuit Court’s order granting summary
judgment in favor of the City of Pikeville (the “City”); the City’s mayor, James A.
Carter; the City’s manager, Philip R. Elswick; the City’s Board of Commissioners;
and the City of Pikeville Exposition Center Corporation (collectively, the
“Appellees”) and dismissing the matter with prejudice. Appellant further appeals
from the Pike Circuit Court’s order granting attorney’s fees and costs to Appellees.
Upon review, we reverse both the Pike Circuit Court’s order granting
summary judgment in favor of Appellees and the Pike Circuit Court’s order
granting attorney’s fees and costs to Appellees and remand the matter for further
proceedings in accordance with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed a complaint in the Pike Circuit Court on May 15,
2018, against Appellees based on Appellees’ alleged violations of Kentucky
Revised Statute (KRS) 65.870, which preempts local governments from regulating
firearms. In its complaint, Appellant sought a declaratory judgment from the Pike
Circuit Court that particular rules, policies, and lease provisions prohibiting all
weapons within certain properties owned, leased, and/or controlled by the City
violated KRS 65.870. Appellant also sought temporary and permanent injunctions
prohibiting the enforcement of such rules, policies, and lease provisions, along
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with a repeal of the offending actions and an award of Appellant’s attorney’s fees,
costs, expert witness fees, and expenses.
Thereafter, the parties filed competing motions for summary judgment
and, after holding a hearing on January 24, 2020, the circuit court entered an
opinion and order on March 10, 2020, denying Appellant’s motion for summary
judgment, granting Appellees’ motion for summary judgment, and dismissing
Appellant’s complaint with prejudice. Additionally, on June 10, 2020, the trial
court entered an order granting Appellees’ attorney’s fees as the “prevailing party”
in the action. This appeal followed.
Further facts will be discussed as they become relevant to the issues
discussed in this Opinion.
ISSUES
Appellant argues the following issues on appeal: (1) whether the trial
court erroneously granted Appellees’ motion for summary judgment by
misunderstanding the facts, misapplying KRS 65.870 to the facts, and accepting
Appellees’ reliance on other state and federal laws; (2) whether the trial court
erroneously determined that Appellees were the “prevailing party” and thus
entitled to attorney’s fees; and (3) whether the court awarded unreasonable
attorney’s fees to Appellees.
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ANALYSIS
a. Standard of Review
As stated by the Kentucky Supreme Court, “the proper function of
summary judgment is to terminate litigation when, as a matter of law, it appears
that it would be impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). Thus, the trial court must
view the record “in a light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his favor.” Id. (citations
omitted). Further, “a party opposing a properly supported summary judgment
motion cannot defeat it without presenting at least some affirmative evidence
showing that there is a genuine issue of material fact for trial.” Id. at 482.
(citations omitted).
Upon appellate review, “[a]n appellate court need not defer to the trial
court’s decision on summary judgment and will review the issue de novo because
only legal questions and no factual findings are involved.” Hallahan v. The
Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004) (citations omitted).
In reviewing a grant of summary judgment, our inquiry focuses on “whether the
trial court correctly found that there were no genuine issues as to any material fact
and that the moving party was entitled to judgment as a matter of law.” Scifres v.
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Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky Rules of Civil
Procedure (CR) 56.03).
b. Discussion
1. General Constitutional and Statutory Framework Regarding
the Regulation of Firearms in Kentucky
Before addressing the parties’ specific arguments in this case, we will
analyze the overall constitutional and statutory framework in Kentucky regarding a
city’s or other local government’s ability to prohibit or otherwise regulate the open
carrying of firearms, the carrying of concealed firearms, and/or the storage of
firearms contained within vehicles on property owned, leased, or controlled by
such city.
The United States Constitution states that “[a] well regulated Militia,
being necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.” U.S. CONST. amend. II. Additionally, the
people of Kentucky preserved the protection of this right in Section 1(7) of the
Kentucky Constitution, which states that:
[a]ll men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be
reckoned: . . . Seventh: [t]he right to bear arms in
defense of themselves and of the State, subject to the
power of the General Assembly to enact laws to prevent
persons from carrying concealed weapons.
(Emphasis added.)
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Moreover, while the Kentucky Constitution allows the General
Assembly to enact laws regarding the carrying of concealed weapons, the General
Assembly has specifically preempted other forms of local government from
establishing any rule, policy, procedure, ordinance, or “other form of executive or
legislative action” that prohibits or otherwise regulates firearms. KRS 65.870.
Specifically, the General Assembly enacted KRS 65.870, which provides, in
applicable part, that:
(1) [n]o existing or future city, county, urban-county
government, charter county, consolidated local
government, unified local government, special district,
local or regional public or quasi-public agency, board,
commission, department, public corporation, or any
person acting under the authority of any of these
organizations may occupy any part of the field of
regulation of the manufacture, sale, purchase, taxation,
transfer, ownership, possession, carrying, storage, or
transportation of firearms, ammunition, components of
firearms, components of ammunition, firearms
accessories, or combination thereof.
Further, “[a]ny existing or future ordinance, executive order, administrative
regulation, policy, procedure, rule, or any other form of executive or legislative
action in violation of this section or the spirit thereof is hereby declared null, void,
and unenforceable.” KRS 65.870(2).
Thus, the foregoing statutory language sets forth the General
Assembly’s intent that no form of local government is permitted to regulate or
promulgate any rules, policies, or other forms of executive or legislative action in
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the area of firearm carrying, possession, storage, or transportation. The language
of this statute is unambiguous, and no exceptions to the terms of the statute are set
forth. See Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984) (where the General
Assembly makes “no exceptions to the positive terms of a statute [it] is presumed
to have intended to make none.”).
2. The Open Carrying of Firearms Under Kentucky Law
As stated by a separate panel of this Court, “[i]n Kentucky, a person
has the right to carry a firearm openly and, so long as the firearm is in full view, no
one may question the person’s right to do so.” Pulley v. Commonwealth, 481
S.W.3d 520, 525 (Ky. App. 2016) (citation omitted). The Court further observed
that “[a]s interpreted by Kentucky Courts, this right ‘is an exemplification of the
broadest expression of the right to bear arms.’” Id. (quoting Holland v.
Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956)). Thus, “[b]earing an unconcealed
weapon is not an offense[,]” the Court stressed. Id. (citation omitted).
3. The Concealed Carrying of Firearms on City Property in
Kentucky
In line with Kentucky’s constitutional language, the Kentucky
General Assembly has enacted various laws authorizing the issuance of and
establishing standards for an individual’s right to carry concealed weapons.
Specifically, under KRS 237.110, once obtained, a license to carry a concealed
firearm or other deadly weapon is “valid throughout the Commonwealth and,
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except as provided in this section or other specific section of the Kentucky Revised
Statutes or federal law, permit[s] the holder of the license to carry firearms,
ammunition, or other deadly weapons, or a combination thereof, at any location in
the Commonwealth[.]”
Nevertheless, the General Assembly also passed KRS 237.115(2),
which provides, in applicable part, that:
[t]he legislative body of a . . . city . . . may, by statute,
administrative regulation, or ordinance, prohibit or limit
the carrying of concealed deadly weapons in that portion
of a building owned, leased, or controlled by that unit of
government. That portion of a building in which the
carrying of concealed deadly weapons is prohibited or
limited shall be clearly identified by signs posted at the
entrance to the restricted area. . . . The provisions of this
section shall not be deemed to be a violation of KRS
65.870 if the requirements of this section are followed.
KRS 237.115(2) (emphasis added). Consequently, with the enactment of this
statute, the General Assembly made a limited delegation of power concerning the
regulation of the carrying of concealed weapons to local governments whereby a
city government – without otherwise violating the statutory prohibition contained
in KRS 65.870 – may prohibit or limit the carrying of concealed deadly weapons in
buildings or portions of buildings owned, leased, or controlled by the city.
Accordingly, the General Assembly has specifically required that the
only entity entitled to promulgate rules or policies relating to the prohibition of
concealed firearms on property owned, leased, or controlled by a city is that city’s
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legislative body. Moreover, the city’s legislative body must do so only via
ordinance or administrative regulation and not merely through an informal rule,
regulation, or policy. Stated another way, given the specific statutory language of
KRS 237.115, the only method by which a city may ban or limit the concealed
carrying of firearms in an area owned, leased, or controlled by such city is for the
legislative body to properly pass an ordinance or administrative regulation
prohibiting or limiting the carrying of concealed firearms in the buildings or
portions thereof owned, leased, or controlled by the city.
4. The Open or Concealed Storage of Firearms in Vehicles
The General Assembly has legislated that “[n]o person or
organization, public or private, shall prohibit a person from keeping a loaded or
unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in
accordance with the provisions of this subsection.” KRS 527.020(8) (emphasis
added). The foregoing language applies to persons regardless of whether they hold
a concealed carry license.
Additionally, KRS 527.020(4) states that “[n]o person or organization,
public or private, shall prohibit a person [who is licensed to carry a concealed
firearm or other deadly weapon] from possessing a firearm, ammunition, or both,
or other deadly weapon in his or her vehicle in compliance with the provisions of
. . . [KRS] 237.110, and 237.115.” (Emphasis added.) Further, the Kentucky
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Supreme Court has noted that the General Assembly has “explicitly” stated “that
the concealed carry licensing statute is to be liberally construed in favor of the
right to bear arms” and has a “clearly[-]expressed policy of exempting a person’s
vehicle from firearms regulation.” Mitchell v. University of Kentucky, 366 S.W.3d
895, 901 (Ky. 2012).
We now turn to an application of the foregoing constitutional and
statutory framework to each of the applicable properties involved in this case.
A. The Eastern Kentucky Exposition Center a/k/a the
Appalachian Wireless Arena
Pursuant to KRS 154.40-020, the General Assembly formed the
Eastern Kentucky Exposition Center Corporation (the “Expo Corp”) “as an
independent, de jure municipal corporation and political subdivision of the
Commonwealth that shall be a public body corporate and politic” to develop,
operate, and manage the Eastern Kentucky Exposition Center (the “Expo Center”).
KRS 154.40-050 states that the Expo Corp “shall provide all management
functions for the facility and for any other property acquired or leased in
accordance with its powers established in this section.” Finally, under the same
statute, the Expo Corp “shall have the exclusive control of all exhibitions,
performances, and concessions in the [Expo Center].” KRS 154.40-050.
In February of 2011, the Expo Corp, as the custodian of the Expo
Center by virtue of the foregoing statutory language, leased the Expo Center to the
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City (the “Lease”). In the Lease, the City agreed to comply with all applicable
laws relating to the premises. Moreover, while the Lease granted the City the right
to assign or sublet the premises without the consent of the Expo Corp, the City
agreed that no such assignment or sublease released the City from its obligations
under the Lease.
Thereafter, in November of 2016, a Kentucky non-profit corporation
was created with the Kentucky Secretary of State called the City of Pikeville
Exposition Center Corporation (the “City Corp”). The purpose of the City Corp as
described in the Articles of Incorporation was to “operate an exposition center and
all other lawful purposes.” One of the five initial members of the board of
directors of the City Corp included James Carter, the City’s mayor. Additionally,
subsequent annual reports for City Corp listed Philip Elswick, the City manager, as
the Chief Executive Officer of the City Corp.
On November 14, 2016, and with an effective date of January 1, 2017,
the City and City Corp entered into a sublease agreement (the “Sublease
Agreement”) in which the City subleased the Expo Center “to its wholly[-]owned
non-profit corporation,” City Corp. City Corp agreed in the Sublease to “at all
times . . . comply with [the Lease between the City and the Expo Corp].”
Appellant alleged in its complaint that the Expo Center posted on its
website and in the facility a blanket prohibition of firearms and other deadly
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weapons. Moreover, Appellant provided a copy of a rental agreement for the Expo
Center between the City Corp and a renter containing the following language:
[City Corp] represents to tenant that [the Expo Center] is
located in a School Zone as defined by the Gun[-]Free
School Zone Act of 1990 as contained in 18 U.S.C.
[United States Code] adopted November 29, 1990 (the
Act). [City Corp] prohibits the possession of all
concealed weapons upon [the Expo Center’s] premises
pursuant to this Act. All persons are prohibited from
possessing firearms and other deadly weapons on the
premises unless such possession is authorized by the
exceptions in the Act. Tenant has the right to allow or
disallow open carry of weapons in [the Expo Center] and
both unconcealed and concealed weapons on the outside
premises of [the Expo Center], at its event to the extent
that the event is deemed a private event and because the
choice of carrying open carry firearms into the tenant’s
event is the tenant’s choice, it is the tenant’s option to
comply with state and federal law concerning the
possessing of firearms and other dangerous weapons
during its event and additionally has a legitimate concern
for the safety and security of its artists and employees as
well as its event attendees. For the [sic] reasons,
firearms, ammunition, accessories and other deadly
weapons shall be prohibited from the premises during the
event and [City Corp] shall cause the premises to be
posted warning that firearms and other deadly weapons
shall not be allowed on the premises. [City Corp]
reserves in its sole discretion, but not the duty, the means
necessary to limit firearms upon the premises. [City
Corp] also reserves the right to restrict or prohibit
possession of other items such as knives, chains, etc.
which may be used as weapons. As per state statu[t]e,
law enforcement officials are exempted from this
restriction.
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Additionally, an affidavit from the executive director of the Expo Center affirmed
that the Expo Center’s website posts prohibited items, which include “weapons of
any kind,” and that the Expo Center entrances had signs posted prohibiting all
weapons. The affidavit further stated that the Expo Center had an alcoholic
beverage license and during most adult events sold beer, wine, and distilled spirits
to be consumed in most of the public portions of the Expo Center.
Appellant argues on appeal that the foregoing actions violated KRS
65.870. Therefore, we must first determine whether Appellees fall within the
statutory definition of “local” government under KRS 65.870. The General
Assembly defined the Expo Corp as a “municipal corporation and political
subdivision of the Commonwealth.” In turn, the Expo Corp leased the Expo
Center to the City, which clearly qualifies as an “existing . . . city” under KRS
65.870(1). Further, the City subleased the Expo Center to the City Corp, which is
an entity “acting under the authority of” the City under KRS 65.870. Indeed, both
the mayor and the city manager are listed as officers of the City Corp. Thus, we
believe both the City and City Corp are subject to the provisions of KRS 65.870.
Next, we must examine whether the foregoing actions taken by the
City and/or the City Corp violated the specific statutory language of KRS 65.870.
The record, when viewing the facts in a light most favorable to Appellant, indicates
that Appellees took additional steps beyond merely “posting” or “advising” of
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existing federal and state laws. Appellees took affirmative steps to prohibit
weapons of any kind at the Expo Center and specifically turned away certain
members of Appellant having the proper concealed carry licenses under
Kentucky’s statutory framework. While Appellees argue that Appellant has failed
to cite to any specific ordinances promulgated by the City prohibiting firearms,
Appellees have also failed to cite any support for the proposition that they can
regulate the possession of firearms through rule or policy when they cannot do so
by law or ordinance. The language contained in KRS 65.870 is clear, and the City
may not regulate indirectly what it cannot regulate directly. If nothing else, the
rules and policies promulgated for the Expo Center are haphazard and confusing,
with Appellees’ blanket prohibition of guns failing to give clear guidance to those
enforcing such ordinances, nor to the citizenry expected to comply with such
policies.
Both the circuit court and Appellees rely on the federal Gun-Free
School Zone Act for the proposition that, because the Expo Center is within 1,000
feet of various schools and/or education centers, it could post or otherwise advise
potential users of the prohibition of deadly weapons under such federal law. 18
U.S.C. § 922(q)(2)(A) states that “[i]t shall be unlawful for any individual
knowingly to possess a firearm that has moved in or that otherwise affects
interstate or foreign commerce at a place that the individual knows, or has
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reasonable cause to believe, is a school zone.” The term “school zone” is defined
in 18 U.S.C. § 921(a)(25) as “(A) in, or on the grounds of, a public, parochial or
private school; or (B) within a distance of 1,000 feet from the grounds of a public,
parochial or private school.”
Nevertheless, 18 U.S.C. § 922(q)(2)(B)(ii) goes on to state that:
[s]ubparagraph (A) does not apply to the possession of a
firearm . . . (ii) if the individual possessing the firearm is
licensed to do so by the State in which the school zone is
located or a political subdivision of the State, and the law
of the State or political subdivision requires that, before
an individual obtains such a license, the law enforcement
authorities of the State or political subdivision verify that
the individual is qualified under law to receive the
license[.]
(Emphasis added.) As already discussed, KRS 237.110 discusses licenses to carry
concealed deadly weapons and states that:
[p]rior to the issuance of an original or renewal license to
carry a concealed deadly weapon, the Department of
Kentucky State Police . . . shall conduct a background
check to ascertain whether the applicant is eligible under
18 U.S.C. sec. 922(g) and (n), any other applicable
federal law, and state law to purchase, receive, or possess
a firearm or ammunition, or both.
Thus, while the Gun-Free School Zone Act applies to the open carrying of firearms
within the Expo Center as the Expo Center is within 1,000 feet of a school, the
statute specifically exempts those persons with a valid Kentucky concealed carry
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license from its scope, and a blanket prohibition of all firearms at the Expo Center
was not appropriate.
Appellees further argue that KRS 237.110(16)(f) states that anyone
who obtains a concealed carry license is not authorized to carry a concealed
firearm into “[a]ny elementary or secondary school facility without the consent of
school authorities as provided in KRS 527.070, any child-caring facility as defined
in KRS 199.011, any day-care center as defined in KRS 199.894, or any certified
family child-care home as defined in KRS 199.8982[.]” However, the Expo Center
is not an elementary or secondary school facility, child-care facility, or day-care
center. Further, no “1000-foot” rule exists under Kentucky’s statute, as it applies
only to facilities owned by the school. Thus, a blanket prohibition of firearms is
not proper.
Moreover, Appellees argue that KRS 237.110(16)(e) supports their
blanket prohibition of firearms at the Expo Center. KRS 237.110(16)(e) states that
anyone who obtains a concealed carry license is not authorized to carry a
concealed firearm into “[a]ny portion of an establishment licensed to dispense beer
or alcoholic beverages for consumption on the premises, which portion of the
establishment is primarily devoted to that purpose[.]” (Emphasis added.) In this
case, while the Expo Center may be licensed to serve alcohol, it is not “primarily
devoted to that purpose[.]” Again, the Expo Center’s policies and lease provisions
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providing for a blanket prohibition of firearms went far beyond a simple
notification of the foregoing statutory language.
Consequently, because none of the statutes presented by Appellees
authorize a blanket prohibition of firearms at the Expo Center, the statutory
framework of KRS 65.870, when viewed in conjunction with KRS 237.115(2),
makes clear that, in order for the City to properly regulate or prohibit the carrying
of concealed firearms in the Expo Center, the City was required to follow the
proper channels in promulgating an ordinance to do so. As previously discussed,
KRS 237.115(2) operates to authorize the City to promulgate regulations
prohibiting persons licensed to carry concealed deadly weapons from carrying
concealed deadly weapons in those portions of buildings that are owned, leased, or
occupied by the City while still complying with KRS 65.870. In this case, neither
the City nor the City Corp was authorized to disseminate informal policies and
provisions contained in leases prohibiting the concealed carrying of firearms, as
such methods cannot take the place of a prohibition that is required by statute to be
promulgated by a legislative body via statute.
Lastly, while we agree with Appellant that a blanket prohibition of all
firearms at the Expo Center was improper, we agree with Appellees that individual
renters at the Expo Center have the right to dictate whether their guests are
permitted to carry weapons while attending such renter’s events and to otherwise
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control the renter’s security at its events. Although Appellees are subject to KRS
65.870, we conclude that Appellee’s enforcement of a private renter’s policy does
not violate KRS 65.870, as a private renter’s policy is not a form of executive or
legislative action enacted or enforced by a local unit of government. Therefore, the
enforcement clause of KRS 65.870 does not apply to policies created by private
renters of the Expo Center’s facilities.
To summarize, we believe that a blanket prohibition of all firearms
within the Expo Center facilities, whether posted on the Expo Center’s website, at
the entrances to the Expo Center’s facilities, or within a lease agreement drafted by
City Corp for potential renters of the Expo Center facilities, is not permitted under
KRS 65.870. Specifically, we find that, in order to properly prohibit or limit the
concealed carry of firearms in the Expo Center under KRS 237.115, the City’s
legislative body was required to do so through a properly-promulgated ordinance
or administrative regulation. Thus, the circuit court’s grant of summary judgment
in favor of Appellees as to the blanket prohibition of firearms was in error as to the
Expo Center.
Nevertheless, we find that 18 U.S.C. § 922(q)(2)(A) prohibits the
open carrying of firearms within the Expo Center, as the Expo Center is within
1,000 feet of a school zone. Additionally, we agree with Appellees that any renter
of the Expo Center’s facilities has the right to dictate whether their guests are
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permitted to carry weapons while attending such renter’s events and to otherwise
control the renter’s security at its events.
B. Other Locations
Appellant further argues that various other properties and/or facilities
owned, leased, or controlled by the City had rules and policies prohibiting firearms
at such facilities. Appellant provided an example of a lease agreement between the
City and potential renters of two facilities, the Garfield Community Center and the
Pikeville Fire Department Training Facility. In section 11(g) of this agreement, the
City required that “[n]o person shall be allowed to have firearms, knives,
explosives, or any other weapons in the facility or on the premises at any time.”
Additionally, Appellants provided a copy of the City’s RV Park Rules and
Regulations. Rule and Regulation 28 states that “[a]bsolutely no firearms,
fireworks, explosives, or weapons of any kind are permitted within any RV,
vehicle of any kind, or on the person of any guest.” Finally, Appellant provided a
copy of the City’s Parks and Recreation Department Shelter Rules. Under Rule 9,
“[i]t is unlawful for any person, firm, or corporation to take, carry, or otherwise
transport any firearm into any City of Pikeville Park unless you are a sworn police
officer. Per City Ordinance Chapter 130[.]”
Thus, we again find rules and policies that fall under the same general
analysis as previously discussed regarding the Expo Center. KRS 237.115(2)
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again operates to authorize the City to prohibit those persons licensed to carry
concealed deadly weapons from carrying concealed deadly weapons in those
portions of buildings that are owned, leased, or occupied by the City. However,
such prohibitions must be in the form of ordinances or administrative regulations
promulgated by the City’s legislative body and can extend only to “buildings.” See
KRS 237.115. Additionally, the open carry of firearms on any properties located
within 1,000 feet of a school zone, as defined in 18 U.S.C. § 922, may be
prohibited.
Moreover, we note that, as previously discussed, Kentucky’s statutory
scheme protects an individual’s right to store a firearm in his or her vehicle. See
KRS 527.020(4) & (8); Mitchell, 366 S.W.3d at 898-901. Such right extends to
recreational and other vehicles located at any of the facilities described herein.
Thus, to summarize, we agree with Appellant that Appellees were not entitled to
summary judgment regarding the other properties, as they have not provided
evidence that they followed the procedure outlined in KRS 237.115(2) to limit or
prohibit the carrying of concealed deadly weapons. Further, Appellees’
prohibition of firearms included such firearms that may be lawfully contained
within a vehicle under KRS 527.020(4) and/or KRS 527.020(8).
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C. Attorney’s Fees
As described by a separate panel of this Court, “an award of attorney
fees is within the sound discretion of the trial court, and its decision will not be
disturbed absent a finding of abuse of discretion.” Golden Foods, Inc. v. Louisville
& Jefferson County Metropolitan Sewer Dist., 240 S.W.3d 679, 683 (Ky. App.
2007). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
This Commonwealth adheres to the “American Rule” which provides
that “attorney’s fees are not recoverable in the absence of a statutory or contractual
provision to the contrary[.]” Gibson v. Kentucky Farm Bureau Mut. Ins. Co., 328
S.W.3d 195, 204 (Ky. App. 2010). To that end, KRS 65.870(4) states, in relevant
part, that: “[a] court shall award the prevailing party in any such suit [under KRS
65.870] . . . [r]easonable attorney’s fees and costs in accordance with the laws of
this state[.]” In this case, the circuit court awarded attorney’s fees to Appellees as
the “prevailing party.” However, because we are reversing the circuit court’s grant
of summary judgment in favor of Appellants, we remand the matter to the trial
court for reconsideration of the issue of attorney’s fees.
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CONCLUSION
Accordingly, we reverse the Pike Circuit Court’s summary judgment
because we believe that a blanket prohibition of all firearms at the applicable
properties was in error. Specifically, we hold that, under 18 U.S.C. §
922(q)(2)(A), the City may post prohibitions of the open carrying of firearms on
any of the properties it owns or leases located within 1,000 feet of a school zone.
However, we further hold that, for the City to regulate or prohibit the carrying of
concealed firearms by licensees on any portion of a building owned, leased, or
controlled by the City, its legislative body must follow the proper channels to
promulgate an ordinance under KRS 237.115(2). Further, we hold that individual
renters of the Expo Center’s facilities have the right to dictate whether their guests
are permitted to carry weapons while attending such renter’s events and otherwise
to control the renter’s security at its events. Finally, we hold that the City may not
prohibit firearms that may be lawfully stored within a vehicle under both or either
KRS 527.020(4) and KRS 527.020(8).
On remand, we direct the circuit court to reconsider the issues of
attorney’s fees under KRS 65.870(4).
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Steven D. Jaeger Russell H. Davis, Jr.
Erlanger, Kentucky Pikeville, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR
APPELLANT: APPELLEES:
Steven D. Jaeger Russell H. Davis, Jr.
Erlanger, Kentucky Pikeville, Kentucky
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