Kentucky Supreme Court overturns Bullitt County smoking ban - WDRB 41 Louisville News

Kentucky Supreme Court overturns Bullitt County smoking ban

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LOUISVILLE, Ky. (WDRB) -- The Kentucky Supreme Court has overturned the Bullitt County smoking ban, saying the county Board of Health “exceeded its authority” under state law and the ban is “therefore invalid and unenforceable,” according to Thursday’s ruling.

The board of health enacted the ban - which affected all public places, including bars and restaurants – on March 22, 2011.

The high court ruled that the authority of health boards under Kentucky law to adopt regulations aimed at protecting public health does not extend to “any regulation relating to that broad field.”

Board of health lawyer Phillip Scott said they could ask the Supreme Court to reconsider but noted that it was a unanimous decision and was unsure what they could come up with to change the court's mind. Still, he said the board would look into it.

Bullitt Fiscal Court could still pass a countywide smoking ban, but they have thus far opposed the idea, fighting the board of health.

But John Spainhour, an assistant county attorney who represented Fiscal Court and the eight Bullitt cities that sued to overturn the ban, said "this has never been a case about whether a smoking ban is or is not a good idea. The issue is who gets to say so."

Spainhour noted that Fiscal Court passed a limited smoking ban for county buildings and may at some point revisit the larger issue - but with elected officials making the decision, which would offer the public some recourse if they disagreed.

Bullitt County Judge Executive Melanie Roberts agreed in an interview that the health department should not be passing legislation.

"They are not elected by the people," she said, declining to comment further because she has not spoken with the county attorney.

The Bullitt County Health Department issued a press release saying they were disappointed with the ruling and noted that it included at length the dangers of smoking.

"The studies and evidence of smoking and secondhand smoke are undeniable," the press release said. "We are hopeful, in spite of this setback, that the legislative bodies of the Commonwealth will act appropriately and soon to protect the health of our citizens now that the county boards of health cannot address the matter."

The ruling does not threaten Jefferson County’s smoking ban, which has already been ruled constitutional by the state Supreme Court, said Pat Mulvihill, Mayor Greg Fischer’s general counsel.

Jefferson County’s legislative body, the Metro Council, approved the ban in 2008. The Bullitt County Fiscal Court, on the other hand, was not in favor of smoking ban when Bullitt’s health department imposed it as an administrative regulation in 2011.

In Thursday’s opinion, the Supreme Court said it’s hard to believe that Kentucky legislators “would have intended, or even remotely foreseen” county health boards banning smoking when lawmakers last updated the boards’ powers in 1954.

“In that year, it would have been commonplace for members of the General Assembly to indulge in a cigarette or cigar in their offices, committee rooms, or even on the floors of the House and Senate,” according to the opinion.

It adds that the law empowering county health boards was “most likely…debated and voted in chambers fogged with a haze of smoke.”

Bullitt Fiscal Court and eight cities in the county filed suits against the health board, arguing in Bullitt Circuit Court that they didn't have the authority to enact such a law. The trial court agreed but a divided court of appeals reversed the ruling, finding the smoking ban was constitutionally valid.

The Supreme Court opinion, written by Justice Bill Cunningham, noted that health boards can adopt regulations "necessary to protect the health of the people" but cannot pass a law.

The opinion noted that "no state has been more affected by tobacco than Kentucky" and that the state's relationship with "its historic cash crop has been bittersweet - both the boon and the bane of our Commonwealth."

Reporter Chris Otts contributed to this story.
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