High court says wait on smoking ban

Kentucky's highest court stepped into the fray of Lexington's smoking ban yesterday, unanimously blocking the ordinance for an additional three months -- ample time for the debate to be picked up by the state legislature.

The last-minute stay overturned a ruling by an appeals court, which just hours before had agreed to let the ban start today as scheduled. The Court of Appeals had been asked to review a Fayette circuit judge's upholding of the ban, the first of its kind in Kentucky.

But the Supreme Court agreed to settle the appeal directly. The justices set a hearing for March 10 -- which, by judicial standards, was remarkably quick for a lawsuit that was filed with the trial court in September, attorneys said.

A shortcut to the highest court is "a good way to get a final answer on this," said John Walters, attorney for the Lexington-Fayette County Food and Beverage Association, which filed the suit challenging the ban. "The business owners want to get an answer as to what's going to go on, and I know other counties are looking at it."

Smoking-ban advocates, however, were upset. They fear the state legislature, which convenes in January, will consider passing a law that would prohibit local communities from banning smoking.

Two bills that have already been filed would do that, besides repealing Lexington's law.

"Oh my God," ban proponent Lisa Greathouse said from Boston last night, where Lexington was given an award by a national non-smokers rights group for passing the controversial ban. The city's ordinance has received attention around the country because of the region's reputation for tobacco production and its high concentration of smokers.

"This high court is robbing the citizens of Lexington of safe breathing and clean air," Greathouse said. "They're robbing our public health."

The justices offered no explanation for their order, but ban advocates saw reason for optimism in the decision.

"Kentucky is a tobacco capital, and I think they're honoring their heritage and being very careful," said Vice Mayor Mike Scanlon, also in Boston last night to accept the award from Americans for Nonsmokers' Rights. "The courts are trying to be sensitive to that and let people exhaust their options before they let it through."

The justices are taking their time on a monumental case with statewide ramifications, said Phil Scott, a lawyer representing the city and health department. But the court is being judicious at the expense of people's lives, he said.

"The ordinance should have gone into effect several weeks ago, frankly, but at the very least, it should have gone into effect today," Scott said. "People will be hurt by the smoke they inhale."

Meanwhile, city leaders are preparing for the fight to move to a new front -- the state legislature. This week, the Urban County Council passed a resolution urging the General Assembly to uphold local communities' rights to regulate smoking. Scanlon said he expects the city to actively lobby legislators against pre-empting local smoking bans.

Scott said he doubted state legislators would want to sign on to a bill that would essentially strip communities' home rule. "We are maybe foolishly optimistic, but we don't believe that would be in the best interest of the legislature."

Ban proponents are also banking on new Gov. Ernie Fletcher to support local control.

Fletcher opposes a bill by state Sen. Dan Seum, R-Louis-ville, that aims to prevent cities from passing smoking bans, said Wes Irvin, Fletcher's director of communications. Seum's bill also would retroactively invalidate Lexington's ban.

Fletcher said during his campaign that he does not support the Seum bill "because it imposes mandates on local communities that I don't think it should impose."

But Irvin said it is too early to say whether Fletcher would veto such a bill if both the state Senate and House approved it. The governor would like to see the final form of any bill before making that decision.

"I wish they would make a decision, yea or nay," said Kara Allen, a bartender at Malibu Pub and Grille. "It's just really frustrating not knowing what's going to happen."

She said she was relieved by the Supreme Court's injunction -- a timely reprieve, considering the holiday season is Malibu's busiest and about 80 percent of the bar customers smoke.

At The Rack Club, a billiard hall on Woodhill Drive, workers welcomed the court's decision.

The staff was aware of the potential smoking ban, but-hasn't met to discuss pulling ashtrays or setting up an outdoor smoking area for customers.

"We were all just hoping it wasn't going to happen," said Tricia Sutton, the daytime bartender.

Earlier yesterday, it looked as if the ban -- which prohibits smoking in most enclosed public spaces -- might go into effect today.

At the Court of Appeals hearing, Walters emphasized that the court had already issued an injunction before. In October, it ruled that the ban should be enjoined until Fayette Circuit Judge Larry VanMeter could rule on the merits of the case. VanMeter ruled last month, dismissing the lawsuit and setting a date for the ban to start.

But yesterday, a different three-judge appeals panel refused to stop the ban. "The status quo has changed significantly since this matter was previously before the Court," its order said. "The issues have been thoroughly addressed by the circuit court."

Walters has argued that the ban is pre-empted by state law, that it is vague and overly broad, and that it interferes with the rights of business owners. If the ban were not halted, "we're basically talking about changing the character of businesses tomorrow morning."

He alluded to Nicholson's Cigar Bar in downtown Lexington, which he said would be hurt by the ban.

Oddly, Nicholson's has seen a spike in business as uncertainty looms over the ban's future. In the past few weeks, the bar has been packed, manager Misty Carlisle said.

I believe the state legislature will pass a pre-emptive law and kill this in Kentucky. The survival of small restaurants and taverns hangs in the balance.

Further, I don't believe Governor Fletcher will veto such a bill, despite his comments. Looks like our new governor gets a hot grounder in the first inning (he's a physician.)

The KY legislator can decide the fate of individual businesses before the courts decision. I hope they don't cause the business owners to purchase a product that goes by the same name!

"This high court is robbing the citizens of Lexington of safe breathing and clean air," Greathouse said. "They're robbing our public health."

PIG is spelled G r e a t h o u s e. Smoke gnatzies.

(he's a physician.)

If he's a physician AND a politician be prepared for any bills instituted by the legislature to overturn this ban to get farther than his desk.
IMO, he WILL veto such a bill.

Smoking-ban advocates, however, were upset. They fear the state legislature, which convenes in January, will consider passing a law that would prohibit local communities from banning smoking.

A great decision, since anti-smoking laws are based on the clearly fraudulent notion of killer second-hand smoke.

Plus the option of allowing voluntary smoking only establishments is never an option.
Banning tobacco products, an obvious alternative, is never mentioned, nor the reason why ever presented. Why?
Selective onerous taxation, targeted selectively at a small segment of the population still remains, well, unconstitutional.

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