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SMOKING ARGUMENTS: Court of Appeals listens to views

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By Thomas Barr

 LOUISVILLE - Does the Bullitt County Board of Health have the right to adopt regulations which would impose a smoking ban throughout its jurisdiction?

After Bullitt Circuit Judge Rodney Burress said it had stepped beyond its legal bounds, it was time on Tuesday morning for a three-member panel of the state Court of Appeals to hear arguments.

Represented by attorney Margaret Miller, the health board appealed the original decision.

In her arguments to appeals court judges Jeff Taylor, Michelle Keller and Laurance VanMeter, Miller said that the health board has the statutory right to impose such regulations.

Before approving the regulations in March 2010, she said the health board had conducted a series of public hearings to gain feedback on the proposal.

When local health officials went to elected members of Bullitt Fiscal Court, Miller said there was no action taken. 

The health board moved forward with its right to protect the public from a known risk, which would be second-hand smoke.

In questioning from the judges, Miller said the health department employees could notice violations of the no smoking regulation. Sworn law enforcement officers could also enforce the regulation.

She said most of the enforcement would come from complaints made to the health department. Penalties could start at $50.

Any appeal could be made to the board of health. If a police officer issued a citation, Miller said it would go to Bullitt District Court.

Taylor inquired that since the cited statute dated back 57 years, why is it now just being addressed in Bullitt County.

Miller said that the information about the dangers of second-hand smoke is more prevalent today and air quality tests showed issues.

Keller said as a nurse she knew the dangers of second-hand smoke. As a judge, she was concerned with the delegation of authority.

Miller said the statutes are clear that the board of health does have the ability to adopt administrative regulations necessary to protect the health of the public.

But VanMeter asked who had the ability to fire members of the health board?

Since the members are appointed, most of who are selected based on their profession, Miller said they do have terms of office. However, the positions are not elected.

Bullitt County Attorney Monica Robinson said there is an issue of separation of powers and that the health board should not be able to simply make any regulations it desires.

She agreed that the health board could have administrative regulations but they cannot make up laws, which occurred with the smoking ban.

There is no accountability to the public since residents cannot vote on the health board members, said Robinson.

But VanMeter said that the residents could elect state legislators to get those provisions changed.

In other smoking bans in the state, Robinson said the legislative bodies have been involved in some way. She said the smoking ban had not been presented to fiscal court or the eight cities during a public meeting.

She said Mount Washington had a motion a couple of years ago to impose smoking bans but it died without a second.

No one argues that there are dangers to second-hand smoke; however, Robinson said, that was not the issue at hand.

The issue is that the board of health didn’t have the right to impose legislative laws, said Robinson.

If there was a law passed and then the health board wanted to impose administrative regulations on how such a ban might be conducted, she said that would be feasible.

But Keller said that once the county imposed a smoking ban, why would there be any need for the health board to do anything else.

The judge then threw a situation of an outbreak of a disease in Bullitt County, she wondered what could the health board do in terms of quarantines.

Robinson said that in the case of pandemic situations, there are laws to deal with that situation.

Mark Edison, who represents six of the eight municipalities, said few have taken any action over the years.

Hillview imposed a smoking ban in city buildings and in police cruisers.

Lebanon Junction had the first reading on a permit process to allow business owners to legally have smoking. Edison said this was a result of the health board actions.

In cities, Edison said there are certain statutes which municipalities follow. They can have regulations which deal with nuisances, such as tall grass or dogs. But smoking is not one of those situations.

Without law to base the regulations on, Edison said he did not think the board of health could impose its smoking ban.

Mount Washington attorney Norman Lemme said it was akin to taxation without representation as the public had no way to have any voice or control over the health board members.

He was concerned that everything could involve “health” and what would the board want to regulate next.

“What doesn’t involve health?” asked Lemme.

Lemme said the board of health interpretation is too broad and could touch too many areas.

He felt that economic solutions would solve many of the smoking issues. If a customer doesn’t want to visit a place that allows smoking, he will leave. And the owner would have to decide whether his business should continue to allow smoking.

In Mount Washington, he said the businesses have decided on their own how to deal with the issue of smoking.

In response, Miller said that there is legislation already in place to allow the board of health to pass the administrative regulations.

“There is no authority to support their position,” argued Miller. “There is no question that smoking is a health issue.”

She said there are limits to what the board of health could regulate and there must be due process and the issues can’t be vague.

Miller asked that the panel reverse the lower court decision or the reverse and sever any provisions it deems appropriate.

With such a difficult case, Taylor said the panel would take its time to consider the arguments. He expected a decision within 30-60 days.