Smoking ban delayed again (Lexington, KY)

courier journal ^ | 10-7-03 | MICHAEL A. LINDENBERGER

[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.

[wheelgunguru]

And KY being the #1 tobacco state in the nation, too.

[Support Free Republic]

Donate to Free Republic, and Save Larry The Lobster!!!
	Donate Here By Secure Server Or mail checks to FreeRepublic , LLC PO BOX 9771 FRESNO, CA 93794 or you can use PayPal at Jimrob@psnw.com
STOP BY AND BUMP THE FUNDRAISER THREAD- It is in the breaking news sidebar!

[Steely Glint]

"How long of a stretch is it from breaking ashtrays to burning books?"

About as far a stretch as there is from intellectualism to idiocy. Sheesh. Having a smoking section in a restaurant is as dumb as having a peeing section in a swimming pool.

[Renfield]

I was born in Lexington (1959) and raised nearby. I could not imagine, as a child, that such a thing would happen, but I hope it does. How clearly I remember my family doctor's nurse, who was also his receptinist, chain-smoking unfiltered Camels in the waiting room....the smell was like sulfuric acid funes or poison gas. My, how things have changed.

I grew up surrounded by tobacco farmers, and the thought just hit me...most of them didn't smoke!!

[Mears]

A judge with a brain,surprise,surprise!

[Mears]

How original!! Did you think up the "peeing in the pool" thing yourself?----(sarcasm intended)

[Mears]

bump

[Judith Anne]

Yes, I liked this comment:

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.

I agree with you about the peeing section comment. Really juvenile.

[Judith Anne]

....the smell was like sulfuric acid funes or poison gas.

Just like that, huh? So, are you dead? Injured? Did your parents sue? If not, why not? What does poison gas smell like? Any ideas? What does sulphuric acid smell like? Any idea?

[Grit]

A ping just in case you two have not met.

[Mears]

"How long a stretch is from breaking ashtrays to burning books?",said Judge Combs.

Looks like the judge sees similiarities between the antis and the Nazis.

Good for her!!!!

[Judith Anne]

Yes, Hitler was strongly against smokers and smoking.

And Hillary was the one who banned smoking in the White House.

[Mears]

I'll pray for you,Renfield,you must be very ill from all that exposure.

[CSM]

If I own a pool and I want to allow peeing in that pool it is my right to do so. It is also your right to not swim in my pool. Do you have it yet? BTW, communists also beleived in confiscation of private property in the name of public good. Be careful what you support!

And yes, I realize no one would want to swim in my pool if I allowed peeing in it. But people do allow smoking in their privately owned establishments and many people desire to frequent them. Hmmmmm, the market would work in both cases!

[Conspiracy Guy]

Do you go to restaurants that permit smoking?

I don't go to restaurants that don't.

Do you want the government to control everything in your life?

[Grit]

"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."

"They would be the shepherds over us, their sheep. Certainly such an arrangement presupposes that they are naturally superior to the rest of us. And certainly we are fully justified in demanding from the legislators and organizers proof of this natural superiority." -- Bastiat

[gswilder]

I live in Lexington, and personally am for the ban. Whether you are or not, what bothers me is the ongoing obstruction by the courts in this country. This ban was passed in late June with a start date of Sept 29th. This was to give time for the restaurants to prepare and for any potential lawsuits. The groups opposing the ban waited 2.5 months before filing their suit and asking for a "last minute" injunction. That irritated me also, that they waited until the last minute to go get a judge to delay the process. Anyway, this will go on for months I am afraid.

[Mears]

The legislature has the duty to regulate a private business to protect the citizens' health?


Did you ever hear such hogwash in your life? They should ban all alcoholic beverages then,and coffee,and salt.and fatty foods,and high carb foods,and why not just shut them all down and we can all stay home?

I want the government out of my face the way it was 30 years ago when the it assumed it's citizens were grown up enough to take care of themselves.Parents took care of the children and the adults took care of themselves.

Soon the legislatures will enter our homes to save us from ourselves. Madness in the land of the free!!!!

[Conspiracy Guy]

I hope the same nanny government decides to condemn your home and build a WalMart.

[Conspiracy Guy]

Feel free to use my smoke gnatzie poem on these idiots who want the government controlling more.


Smoke Gnatzies

They buzz around your head until,
You think it will explode.
You’d like to catch them all and flush,
They’d swirl down the commode.
They agitate, they irritate,
They just won’t go away.
They want to tell you how to live,
To all of them I say.
Be gone you pest, just fly away,
My freedom you won’t take.
If not for all the buzzing,
I’d swear you were a snake.
But snakes are bad, and you’re just sad,
So go and bug some cat.
Cause if you don’t get out of here,
There’s gonna be a splat.

Flurry 9/16/3