Lexington-Fayette Urban Cnty. Gov't v. McGinnis, 2012-CA-001324-MR

• Court: Court of Appeals of Kentucky
• Writing for the Court: MAZE
• Parties: LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT v. WILL MCGINNIS APPELLEE
• Docket Number: NO. 2012-CA-001324-MR,2012-CA-001324-MR
• Decision Date: 05 July 2013

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT
v.
WILL MCGINNIS APPELLEE

NO. 2012-CA-001324-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: JULY 5, 2013

NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 12-CI-01526
OPINION AFFIRMING IN PART AND VACATING IN PART

BEFORE: COMBS, MAZE AND NICKELL, JUDGES.

MAZE, JUDGE: The appellant, the Lexington-Fayette Urban County Government (LFUCG), appeals a decision of the Fayette Circuit Court. LFUCG avers that the circuit court erred in failing to find that the appellee, Will McGinnis, raised claims that are barred by res judicata. We agree with the circuit court's ruling on this

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issue. But since the other issues were decided in LFUCG's favor and not preserved in a cross-appeal by McGinnis, the circuit court's decision on this issue would not affect the outcome of this case. LFUCG further argues that the circuit court's order discussing the constitutionality of a proposed amendment to the ordinance is an improper advisory opinion. We agree with LFUCG that this matter is purely hypothetical and was not ripe for adjudication. Hence, we affirm in part and vacate in part.

McGinnis owns and operates a taxicab in Fayette County. In 2002, the General Assembly enacted Kentucky Revised Statute(s) (KRS) 281.910, which authorized the regulation of local taxicab companies. The General Assembly also enacted KRS 281.914, which states:

If the Transportation Cabinet grants a local government regulatory authority over taxicabs under KRS 281.910, the local government shall grant an existing certificate holder a local taxicab permit for the number of vehicles the certificate holder has in effect on the date the local government is granted regulatory authority, provided the vehicles meet the safety requirements outlined in KRS 281.912. Renewal of the permit shall be subject to the local ordinance passed pursuant to KRS 281.910.

LFUCG enacted a new ordinance, Section 18A-3 of the Code of Ordinances, which requires a minimum fleet requirement of twenty-five taxicabs. Pursuant to the requirement of KRS 281.914, McGinnis was grandfathered in and received a permit for his single cab.

In 2005, McGinnis sought to increase the size of his fleet and requested permission to increase his fleet one or two at a time. Attorneys

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representing LFUCG advised McGinnis that he could not add taxicabs to his fleet one at a time without jeopardizing the loss of his existing permit. In other words, he could operate his single cab, or he could operate under the new ordinance and maintain a fleet of twenty-five cabs or more. McGinnis could not, however, increase his fleet one at a time.

In 2006, McGinnis filed a complaint in the Fayette Circuit Court against LFUCG and LFUCG attorneys that advised him regarding the permit requirements. McGinnis alleged they acted negligently and in bad faith by interpreting the ordinance in a way that was unconstitutional. The circuit court...