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Smoking ban snuffed out

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By Thomas Barr

FRANKFORT -- Years ago, the Bullitt County Health Department staff knew that something must be done to combat the affects of smoking and second-hand smoke in the community.

Elected officials for Bullitt County and its eight municipalities never argued that having a ban on smoking in public places was not a healthy approach to combat those concerns.

When the Bullitt County Health Board saw no action forthcoming from legislative bodies, it decided to adopt a smoking ban in public places in March 2011.

But the Kentucky Supreme Court, in a unanimous verdict, decided Thursday that the local health board exceeded its rights in passing that regulation.

It reversed an earlier Court of Appeals decision and affirmed the Bullitt Circuit Court ruling which struck down the regulation.

"We are thrilled with the outcome," said county attorney Monica Robinson. "It has been the county's position all along that this matter has had little to do with smoking and more to do with who can make the laws we live by -- legislative bodies or administrative agencies.

"It's an argument about separation of powers that goes back to our founding fathers," added Robinson.

On the other side of the decision, Bullitt County health administrator Andrea Renfrow was "beyond disappointment."

From the department's standpoint, a lot of time, energy and resources went into the preparation and adoption of the smoking ban.

The ban would basically stop smoking in public places, such as restaurants, bars and entertainment places.

While disappointed about the lost effort, Renfrow was more concerned with that the decision does to the future health of Bullitt County residents.

"The Board of Health cannot protect the community from second-hand smoke," said Renfrow. "That is a shame."

She is hopeful that the gradual progress at the state level might allow for the passage of a smoking ban in all parts of Kentucky by the General Assembly.

In the meantime, Renfrow said the district will continue its work to talk and educate any group willing to listen.

"We have to continue to raise awareness at any venue possible," said Renfrow. "We've lost grounds in the state rankings and a smoke-free ban could help the community."

Part of the strategy will be to continue to talk with legislative bodies to see if anyone is interested in passes legislation.

"It's out of our hands now," Renfrow said of the decision. "It is a shame. It is beyond disappointment."

Renfrow was pleased that Justice William Cunningham mentioned at length the dangers of tobacco and second-hand smoke.

"The studies and evidence of smoking and second-hand smoke are undeniable," said Renfrow. "We are hopeful, in spite of this setback, that the legislative bodies of the Commonwealth will act appropriately and soon begin to protect the health of our citizens now that the county boards of health cannot address the matter."

The decision was being watched all over the state as it could help determine the abilities of health boards in Kentucky.

Smoke-Free Kentucky congratulated the local health board with making the effort and expressed disappointment with the Supreme Court decision.

"Smoke-Free Kentucky supports the government's authority to eliminate exposure to the toxic chemicals in second-hand smoke and believes this critical workplace health and safety issue should be enacted at the state and local levels to save and reduce disease," according to a release from the organization.

The organization said that the Supreme Court's decision adds pressure to the General Assembly to do something about the issue.

In the Cunningham's written opinion, he pointed out that Kentucky leads the nation in smoking prevalence and that tobacco is a substantial economic impact.

In Kentucky, a 2012 study showed that 28.3 percent of all Kentucky adults were current smokers.

"Given such dismal data, it is understandable that many health care professionals and government officials have sought to curtail the prevalence of this noxious fume," wrote Cunningham. "Promoting a smoke-free society is a reasonable goal grounded in sound research. However, when promotion becomes enactment, even the most virtuous causes must also be grounded in law."

A concern of the justices was that of the 12 members of the board of health, a vast majority are appointed by the secretary of the state's Cabinet for Health and Family Services, not by the voters.

Cunningham wrote that the authority granted under KRS 212.230, even when coupled with these additional statutes, fails to provide the Board with the teeth necessary to adopt and enforce the regulation.

"In sum, we hold that the Bullitt County Board of Health exceeded its authority…," wrote Cunningham. "Bullitt County Health Board Regulation No. 10-01 is therefore invalid and unenforceable."

Robinson said that personally, it was an honor to represent the county on the matter.

"The lawyers involved put their heart and souls into this case," said Robinson. "We made new law in the Commonwealth and the unanimous decision is rock solid. We stood firm and did the right thing for the people of this county to ensure their rights as citizens to be represented by their elected representatives is protected."