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Justices poses questions on smoking ban

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By Thomas Barr

FRANKFORT -- There was no hiding behind a smoke screen Thursday for attorneys representing the Bullitt County Health Board, Bullitt Fiscal Court or the eight municipalities.

The questions were clear as the six members of the Kentucky Supreme Court were looking to determine whether the Bullitt County Board of Health should have the right to regulate smoking in public places.

At times, the questions were also quite pointed.

The state's highest judicial panel were listening to an appeal from Bullitt County governmental agencies. The state Court of Appeals previously overturned a ruling by Bullitt Circuit Judge Rodney Burress.

The appeals court, in a 2-1 decision, ruled that the health board did have the right to pass regulations dealing with issues of general health.

The crux of the discussion in Frankfort on Thursday centered around the authority, or lack of it, given to the health board to impose such regulations.

John Spainhour, representing Bullitt Fiscal Court, said, "They have overstepped their bounds and authority."

While agreeing that the health board has authority to protect the health of the people, Spainhour said state law does not give that agency the right to make new laws.

There are some provisions, such in the areas of housing and the handling of sewage, that are specifically set out, said Spainhour.

However, he said there is nothing specifically set forth to deal with smoking and second-hand smoke.

Most importantly, Spainhour said that regulations are not laws as those should only be adopted by the General Assembly or government agencies such as fiscal court or municipalities.

"There is no end to what could be regulated," Spainhour warned.

Representing the eight municipalities who also challenged the health board, Mark Edison said that one major difference in his concern is that the regulation adopted imposed duties upon the cities in which it has no rights.

Provisions in the regulation require the city clerks and law enforcement officials to monitor any violations. 

"The board of health doesn't have the authority to force city employees to do anything," said Edison.

Besides law enforcement citing violators, the city clerks were instructed to take action on business licenses if violations were found.

Another portion of the regulation designated that smoking would not be allowed in county or city governmental buildings or facilities. Edison said it is strictly up to those elected officials to determine what is done on their property.

Attorney Phillip Scott, representing the health board, is familiar with such smoking cases. He was involved in the Lexington/Fayette County ban on smoking.

However, he told the justices that it was a bit different as there was a number of entities, including governmental officials, who agreed and it was the Urban Council which ultimately approved the ban.

In Bullitt County, Scott said four public forums were held and information was gathered by the health board. He said the issue of passing a smoking ban was discussed with government officials over the years.

(The city of Mount Washington did have formal discussions on the smoking ban but did not approve any legislation.)

Justice William Cunningham inquired why the health board didn't issue a total prohibition of smoking in the county.

Scott said that smoking is still legal in the state of Kentucky.

"We can't stop what is legal," said Scott.

However, he said the General Assembly has given health boards the authority to regulate issues that concern the public, including the issue of second-hand smoke.

Scott said that while there are always concerns voiced about the scope of regulations a health board could pass, there is no way to regulate what a person eats but there is a way to regulate behavior that might affect others.

This led to an interesting line of questions from justice Daniel Venters about how far-reaching the regulations could go.

He posed questions such as whether the board of health could pass regulations requiring the use of condoms due to a concern about the spread of sexually transmitted diseases. 

Venters also ask if the board of health could pass regulations requiring everyone to wash their hands three times a day to guard against the spread of the influenza virus.

And he is the board of health could impose regulations regulating vehicle emissions due to the dangers of pollution.

Scott said that if the authority was delegated in state statutes and if it was reasonable and if it was enforceable, it would be something the health board could regulate.

In addressing the concerns voiced by Edison, justice Lisabeth Hughes Abramson inquired about the regulation dealing with government offices.

Scott agreed that it would not apply to county- or city-owned properties.

(Bullitt Fiscal Court has recently approved a smoking ban on its properties.)

Abramson followed that with asking about the outcome if cities and county officials approved an ordinance allowing smoking in public places.

Scott said that if there is a difference, it would ultimately fall back to the judicial branch to determine who has what powers.

Some questions centered around the makeup of the board of health.

Scott said that two of the members are representative of the public. The county judge/executive is a member and there is an appointment by the judge and approved by fiscal court.

The rest of the membership is made up of health-related positions, which must have state approval.

Spainhour said this is part of the problem where "nobody is elected" to the health board. He said the board answers to the state and there is no question that it does great work in many areas.

However, he said it is not a legislative body and does not have the right to make laws. No where in the statute does it list the regulation of second-hand smoke as one of the provisions under the scope of the health board's powers.

Justice Will Scott said the issue dates back to 1954 and the courts have affirmed the statutes since that time.

His concern was that it appeared that in the case of a controversial issue such as smoking, the people do not have a voice in the matter.

The six justices, minus Michelle Keller who sat on the Court of Appeals panel when the case was heard previously, spent about 45 minutes with the parties. No decision was rendered.

A ruling will be handed down at a later date.

With the appeal, the smoking ban is not currently being imposed.