Bullitt County government, health department battle over smoking ban

Publication Date: 2012-10-24

• Author:Tom O’Neill
• Publication:The Courier-Journal

Smokers and nonsmokers sit side-by-side at The Old Depot Bar & Grill in Shepherdsville, one of many Bullitt County bars and restaurants that could be affected if an appeals court decides that a local health department has the power to enact a smoking ban.

Bar manager Jimmy Benham said a ban would hurt business. “People like to … smoke when they drink.”

In a case that could affect other Kentucky counties, a three-judge panel of the state Court of Appeals is expected to decide soon if the Bullitt County department had the right to ban smoking last year in public places -- over the objections of Fiscal Court and eight Bullitt cities, which successfully sued the department last year in Circuit Court.

Fiscal Court’s and the cities’ argument against the health department and its ban was simple: We make laws, you make regulations based on those laws.

The response from health department officials was simple too: A 1954 state law gives them the authority to “to protect the health of the people.” There is no question second-hand smoke is a public-health issue. Countless studies, including from the U.S. surgeon general, provide proof.

Both sides believe the case will go to the Kentucky Supreme Court.

The legal question

Margaret “Peggy” Miller, a Lexington attorney representing the health department, said the state statute supports her client.

“There can really be no question,” she said. “The regulation of second-hand smoke is necessary to protect the health of the people. I think it’s very clear.”

But Bullitt County attorney Monica Robinson, who represents Fiscal Court and the eight cities, said debate over second-hand smoke is legally irrelevant.

“We’ve never made an issue of whether smoking is good or bad. The only issue,” she said, “is if it goes to administration and not law, we’ve just turned the Constitution on its ear. ... It’s separation of power. It’s as old as the country.”

Sheryl Snyder, an expert on municipal law with Frost Brown Todd in Louisville who has no connection to the case, said the only question for the court is: “Does the statute allow the health department to do this?”

The answer, in his view, is the department may have exceeded its authority. “A basic principal of administrative law is that regulations implement statutes” approved by a legislative body, Snyder said. “Regulations cannot enact new public policy.”

Case is watched

Twelve of Kentucky’s 120 counties have smoking bans, including Jefferson and Oldham. Twenty-two cities also have bans.

In most of the counties, the ban was enacted by a legislative body — including Louisville’s Metro Council.

But health departments in Clark, Madison and Woodford counties ordered the bans on their own.

Health officials in those counties didn’t face opposition from local lawmakers, although they are now following the Bullitt case carefully, concerned that a ruling against the department’s authority will expose them to legal challenges. Other counties considering smoking bans also are watching.

Clark, Madison and Woodford have submitted “friends of the court” briefs supporting the Bullitt department, as has the American Cancer Society...