Posted on 10/07/2003 12:55:31 PM PDT by wheelgunguru
FRANKFORT, Ky. — The Kentucky Court of Appeals ruled yesterday that Lexington's smoking ban can't take effect before a Fayette County judge rules on the lawsuit brought by business owners fighting the prohibition.
The three-judge panel decided 2-1 that a circuit judge erred by refusing to grant an injunction and said the business owners' lawsuit raised important legal questions about a ban on smoking in Fayette County's indoor public businesses.
The judges questioned whether the smoking ordinance adopted by the Lexington-Fayette Urban County Council was overbroad and vague, potentially infringing on the "rights of the owners of the business establishments to determine whether to permit the use of a legal product on their premises," Court of Appeals Judge Sara W. Combs wrote for the panel yesterday.
"Substantial indeed are the concerns of businesses' owners who will arguably operate at their own peril until a court properly construes the proper scope of the ordinances," Combs wrote.
Phillip Scott, the attorney defending the law for Lexington's council and health department, said after the ruling that he and other legal staff were considering their next move "to turn this thing around."
In Louisville, the decision was being watched closely, as the Louisville Metro Council studies an ordinance that would impose a similar ban throughout Jefferson County.
Mike Kuntz, chairman of the Smoke Free Louisville campaign that is leading the push for a smoking ban, said the Lexington case is impossible to ignore.
"If the courts rule that the local efforts are pre-empted by state law, then ultimately we will have to take this up with the state legislature," Kuntz said.
Lexington's law would have taken effect Sept. 29, preventing smoking in most public places, including restaurants and bars. The Lexington-Fayette County Food and Beverage Association sued, asking Fayette Circuit Judge Laurence Van Meter to halt its implementation until the group could present its case in court.
ALTHOUGH HE AGREED that businesses could be financially harmed if the ban was implemented before the lawsuit was decided, Van Meter refused to issue an injunction, ruling that the business group had failed to raise "serious questions" about the legality of the ordinance.
Three days before the ban was to take effect, the Court of Appeals temporarily halted enforcement until it could hear the case.
During that hearing yesterday, two of the appeals judges soon made apparent their worries about the smoking ordinance.
"My concern in this is how far do we go in regulating legal businesses before everything is fair game," Judge Combs told Scott, noting a provision in the ordinance that would require businesses to "remove or disable ashtrays" and to "remove smoking paraphernalia" from their businesses. "How long of a stretch is it from breaking ashtrays to burning books?"
Scott conceded that public discussion of the Lexington law has focused on perceptions that it could threaten civil liberties, but he said those concerns are misplaced.
"Is there a right to smoke in Kentucky? No, there isn't," Scott told the appeals panel. "A legislative body has the right to come in and regulate our businesses. When it's an issue of our citizens' health, they have not only the right to do so, but the duty to do so."
But John Walters, the Lexington attorney for the business association, argued that Kentucky law already bars local governments from regulating tobacco use. Walters said the odds are good that the Lexington ordinance would be declared illegal and that Lexington officials went too far by interfering with businesses.
JUDGE R.W. DYCHE III, who dissented in the ruling, challenged Walters, pointing out that courts long have recognized local and state lawmakers' rights to regulate businesses for safety and health. Why would regulating smoking be any different from regulating food handling, he asked.
But Judge Wilfrid A. Schroder said even though he doesn't smoke, he is concerned that the ordinance goes too far. "We have Keeneland in this area, and tobacco is our second-biggest crop in the state," Schroder said. "It is not an illegal product, and yet you are saying that you can't even provide a place for smokers inside a business."
Tony Atwood, a manager at Nicholson's cigar bar in downtown Lexington, said his bar has sold more cigars in recent months and he hopes the ordinance will be delayed as long as possible.
"Obviously, the longer the law can be prevented from being enforced the better for us," he said.
Could I dare ask why?
Is there anything else you would like the business owners of Lexington KY to do to cater to your desires. Perhaps they will only serve your favorite food. Why don't you call Tony Atwood at Nicholson's Cigar Bar and tell him personally how to run his biz.
Anyway, this will go on for months I am afraid. "Obviously, the longer the law can be prevented from being enforced the better for us," -- Tony Atwood, a manager at Nicholson's cigar bar
When was this 'stablished? I don't mean to be contrary, I just want to know.
We can only hope. Someone needs to save me from my self-destructive behavior.
The state is sovereign. Local towns, counties etc, derive their powers from state laws. In something like regulating smoking, the local gov's can only excerise the power they were given by then state. They cannot have greater power.
I assume in this case that the state has law on the books regarding where and when smoking is acceptable. I also assume that the state has delegated enforcment of health regulations to local governments. I assume that some of these local gov's believe they can use the health regs to expand smoking bans while the restaurants are claiming that these new regs contradict the state laws on smoking.
If that is the case, the towns will most likely lose and the stay should be done. But then the legislature will make it clear that smoking can be regulated as a health issue or just join the other states that are doing state wide bans. .
No, he/she wants government to control everything in your life.
Gee, and here I thought you guys had gotten better material, I am sooo disappointed.
I wonder where they learned that trick..... I like it.
It is not "a" restaurant. It is someones' restaurant. Just like your land isn't, "land". You don't like to be told what to do, or not to do on and in your house, do you? Even though it is your house, it could be described as "a" house. But describing it so wouldn't work with you, so, offer the same property respect to others.
When did private property become "public places?"
If Amendment XIV can be used by the Supreme Court to overturn state laws concerning abortion, then Amendment V ("...nor shall private property be taken for public use without just compensation") and Amendment IX ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.") can be used to overturn state and local laws banning smoking.
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