Could a Kentucky property assessor inspect marina docks without the owner's permission?

Plain-English summary

Lyon County's property valuation administrator asked whether marina docks were nonpublic portions of a commercial building that could not be inspected without an owner under KRS 132.220(3). The Kentucky Attorney General said in 2012 that ordinary floating docks were extensions of land, rather than buildings, so the statute allowed a tax assessor to inspect them in the owner's absence. The inquiry arose from assessing motorboats, which the opinion identified as taxable property.

The AG left two limits open. A dock with enough permanent, building-like structure might count as a building and bring the statutory nonpublic-area exception into play. The opinion also declined to decide whether locked gates at a particular marina actually barred the public; that was a factual issue for courts.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Property valuation administrators

Under the statute as discussed in 2012, the AG treated typical floating docks as land for inspection purposes. KRS 132.220(3) allowed physical inspection and revaluation of land and buildings in the owner's absence. The AG said the exception for nonpublic portions of commercial buildings generally did not cover floating docks.

Marina owners

The opinion distinguished an ordinary dock from a structure with a permanent foundation, frame and roof. If a dock was sufficiently analogous to a building, whether a particular area was nonpublic depended on its facts. The AG expressly did not decide whether the locked gates described by the requester met that test.

Common questions

Did the AG treat every marina dock as a commercial building?

No. It said ordinary floating docks were extensions of land. A sufficiently permanent, building-like dock could be different.

Could an assessor inspect a typical dock while its owner was absent?

Under KRS 132.220(3) as discussed in 2012, the AG said yes for docks treated as land. It did not give a blanket answer for docks that qualified as buildings with nonpublic areas.

Did putting a locked gate at the dock settle the privacy question?

The AG declined to decide that fact. It said a court would have to determine whether the gate affirmatively barred public access if the dock was sufficiently like a building.

Why did the assessor need access to docks?

The opinion said motorboats were subject to property tax and described marinas resisting assessors who sought to inspect boats docked there.

Background and statutory framework

The AG read KRS 132.220(3)'s inspection power and exception for nonpublic portions of commercial buildings alongside the taxation of motorboats under KRS 132.488(1). It relied on authorities distinguishing floating structures from buildings and treating docks as extensions of land. It did not make a site-specific finding on the marina's gates or the structure of its docks.

Citations and references

• KRS 132.220(3): assessment inspection rule and commercial-building exception.
• KRS 132.487 and KRS 132.488(1): vehicle and motorboat tax provisions discussed by the AG.
• KRS 376.010(1): statute involved in the marina-structure case considered by the AG.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_6517f570-e75e-4215-adac-1e74be4dbc3e/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_6517f570-e75e-4215-adac-1e74be4dbc3e

Original opinion text

OAG 12-008
May 24, 2012
Subject:

Whether a marina constitutes a nonpublic portion of
a commercial building for administrative search purposes

Requested by:

Christie Cruce
Lyon County Property Valuation Administrator

Written by:

Matt James
Assistant Attorney General

Syllabus:

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.

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.

OAG 12-008
Page 2

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

OAG 12-008
Page 3

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.

OAG 12-008
Page 4

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, 38990 (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.

OAG 12-008
Page 5

JACK CONWAY
ATTORNEY GENERAL

Matt James
Assistant Attorney General