Judge’s Ruling On Smoking Ban Could Have Local Impact

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THE RICHMOND REGISTER | KELLY McKENNEY | SEPTEMBER 28, 2011

A ruling made earlier this month by a Bullitt Circuit judge could have implications for communities across the state, including Madison County.

Judge Rodney Burress overturned a county-wide indoor smoking ban, saying the county board of health had no constitutional authority to enact the prohibition it passed March 23. The ban would have prohibited smoking in all public places, including bars.

Madison County has a similar smoking ban enacted by its board of health in April 2007.

If Burress’ decision is appealed and taken to the Kentucky Supreme Court, indoor smoking regulation across the state could also be in question.

The ruling came after Bullitt Fiscal Court and the county’s eight cities sued the health board on March 18 to stop the ban, according to Kentucky Health News.

A similar challenge in Hopkins County filed by business owners in October 2008 was unsuccessful in getting the ban in that county overturned. The decision of the judged to uphold the ban was not appealed.

The Madison County Board of Health was the first in the state to pass a smoking ban. It and others since have cited KRS 212.230, which instructs health boards to adopt, implement and enforce regulations necessary to protect public health.

Burress did not agree with the Bullitt County health board’s assertion that it could pass a ban because prohibiting smoking in public places would protect people’s health.

The judge wrote, “This court does not believe that type of ‘Big Brother’ conduct was anticipated by the Kentucky state legislature in its grant of power and authority to boards of health,” according to the Courier-Journal.

When the Madison County board passed the ban at its April 2007 meeting, just one of the board members voted against it.

Michael Oliver, the board’s consumer member, said he believed the board did not have the “right” to pass the legislation.

However, then public health director Jim Rousey said a state attorney had issued a legal opinion that the board did in fact have the authority.

“So that question (of legality) has been settled,” he said.

The board solicited the advice of that attorney, who was with the Office of Legal Services for the Cabinet for Health and Family Services, said Nancy Crewe, current public health director for Madison County.

The attorney advised that the board “has the authority to adopt administrative regulations not in conflict with the administrative regulations of the Cabinet … necessary to protect the health of the people,” Crewe said.

The Bullitt Circuit Court decision should have no impact on Madison County, the health director said.

As for what will happen if the issue goes to a state court, officials will just have to wait and see, she said.

The Madison County ban has not been challenged in court.

It prohibits smoking in all public places, with the exception of no more than 25 percent of hotel or motel rooms rented to guests and outdoor areas where people work.

The ban was amended in April of this year to also prohibit smoking in retail tobacco stores, which had been excluded in the original action. It also now prohibits electronic cigarettes and hookahs, which are “water pipes” popular in southern Asia and the Middle East.

Crewe said no formal complaints about the county smoking ban have been registered, and that the Madison County Health Department “is not aware of any business that could directly attribute declining sales to the Clean Indoor Air Regulation.”

Kentucky Health News reports that Bullitt County’s health director has said the health board will decide in the coming weeks whether to appeal the decision.

As of the end of July, 20 Kentucky communities — Ashland, Danville, Elizabethtown, Frankfort, Georgetown, Henderson, Lexington, London, Louisville, Morehead, Paducah, Paintsville, Pikeville and Clark, Daviess, Hardin, Letcher, Kenton and Oldham counties — have passed smoking ordinances or regulations.

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