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SHEPHERDSVILLE - The comprehensive countywide smoking ban regulation passed earlier this year by the Bullitt County Board of Health is set to go into effect next month.
However, it appears the regulation’s fate ultimately rests in the court system as attorneys representing Bullitt County and all eight cities within the county challenge the health board’s legal authority to impose such a measure.
On Thursday Bullitt Circuit Judge Rodney Burress heard arguments from both sides to determine if, in fact, the regulation, which prohibits smoking in virtually all enclosed spaces and some outdoor areas, oversteps the board of health’s role in adopting policy dealing with public health.
In his opening statement, on behalf of the petitioning party, Shepherdsville attorney John Spainhour said that the issue is not whether the regulation is or is not a good idea.
Simply put, he said the board of health does not have the power to adopt nor to implement the regulation.
Citing Kentucky Revised Statute 212.230, which was frequently evoked by both sides during the hearing, Spainhour argued that state law grants local health boards the authority to adopt administrative regulations, not substantive law, which he said is granted to legislative bodies.
KRS 212.230 states, “County, city-county, and district boards of health shall:...Adopt, except as otherwise provided by law, administrative regulations not in conflict with the administrative regulations of the Cabinet for Health and Family Services necessary to protect the health of the people or to effectuate the purposes of this chapter or any other law relating to public health.”
“We submit that any reasonable interpretation of 212.230 is not a blanket grant to legislate; it is a grant to administer,” Spainhour said. “It is the law in Kentucky that legislators decide what the law is...By any standard this smoking ordinance creates a new law.”
In response to the petitioner’s opening statement, Lexington attorney Margaret Miller, representing the board of health, quoted several cases that she said support the health board’s right to enact policies relating to public health.
“The petitioners suggest the health department is breaking new ground,” Miller said. “It may be new ground here, but it is not new ground in the commonwealth of Kentucky.”
Miller said three county health departments in Kentucky, including Clark, Madison and Woodford, have passed and implemented smoke-free policies on their own.
“There’s no requirement that fiscal courts or the General Assembly specifically act,” she said. “The board of health doesn’t have to sit and wait.”
Miller said local health boards have the statutory authority to act and act quickly when necessary.
In his rebuttal, Spainhour said the policies in Clark, Madison and Woodford Counties were implemented with the express delegation of authority granted by legislative bodies.
Representing the petitioners on behalf of Mount Washington, city attorney Norman Lemme made the case that the regulation is “absurd,” claiming the measure assumes the legislative powers of not only the cities and the county, but of the state.
He argued that since the Kentucky Division for Air Quality regulates air pollution, the board of health’s policy regulating second hand smoke is a usurpation of the state’s power.
Lemme begged the question, if second hand smoke is a threat to public health, why hasn’t the state taken action?
“If it is a health issue it is a state health issue,” he said.
He also said the health department doesn’t have the right to revoke permits based on the regulation, which would allow the health department to do so as a penalty for noncompliance.
Additionally, Lemme questioned the scope of the board of health’s power with regard to public health policy.
“Under the term health, what limits are there on the board of health?” he asked. “If the argument’s to be accepted, there are no limits...We believe there is a limitation.”
Also representing the petitioners, Shepherdsville city attorney Joe Wantland argued that the people of Bullitt County have been denied input with regard to the regulation, stating that the municipal governments have had opportunities to control smoking, but opted not to.
“We think people, through the ballot, have the right to determine what’s legal and illegal,” he said. “That’s the way our government works.”
Attorney Mark Edison, who represents the cities of Fox Chase, Hebron Estates, Hillview, Hunters Hollow, Lebanon Junction and Pioneer Village, argued that the board of health’s powers are limited to enacting administrative regulations, not legislation because he said it’s an administrative agency, not a legislative body.
“This is not a regulation this is an attempt to legislate,” he said.
Addressing Spainhour’s question as to the limit of the board of health’s powers when he asked, “What’s next...A regulation on transfats?” Miller said, “That’s not in our scope.”
However she did say it’s clearly within the board’s power to enact administrative regulation.
Miller said KRS 212.230 does not afford unlimited power to local health boards, but they do have the power to enact regulations to protect public health.
Addressing Wantland’s argument that the people were not considered when the board passed the regulation, Miller said the public had opportunities to voice their opinions when the health department held four public hearings last fall.
Judge Burress asked Miller to state the specific language in KRS 212.230 that allows the board of health to enact the broad regulation.
After she read, “County, city-county, and district boards of health shall:...Adopt, except as otherwise provided by law, administrative regulations,” from the KRS, Burress asked for the board of health’s position on what constitutes administrative regulation and what constitutes legislation.
Miller’s response was that legislative bodies pass legislation.
In defending the boards of health’s authority to enact the smoking regulation, Miller said protecting public health is the duty of the health department, adding that it would be impossible for the state to regulate everything.
Burress asked the petitioners why the smoke-free policy should be considered legislation and not an administrative regulation.
Spainhour said the board of health’s policy attempts to regulate activity and direct other agencies in a way that’s beyond the scope of protecting public health.
In closing, he said there is no express statutory grant to do so.
Burress has taken the case under advisement.
It’s uncertain when he will issue an opinion, but whichever side his opinion favors, individuals from both parties have said they intend to appeal if the decision is not in their favor.