Smoking ban snuffed out

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By Thomas Barr

 SHEPHERDSVILLE - A smoking ban imposed by the Bullitt County Public Health Board will not go into effect this week.

Bullitt Circuit Judge Rodney Burress ruled Thursday that a regulation passed earlier this year by the health board was unlawful.

The decision can be appealed.

After the health board approved its regulation, Bullitt Fiscal Court was joined by each of the eight municipalities to challenge the decision to ban smoking in public places and in work places.

Attorney John Spainhour said during the hearing that no one questioned the harm that may be caused by smoking. He said the only issue to be considered is whether the Board of Health has the authority to impose such a regulation.

In his ruling, Burress said the Board of Health is limited in its authority by the state legislature.

“The power of an administrative agency to create administrative regulations is a function that is, by its very nature, limited,” wrote Burress.

The judge determined the health board tried to undertake legislative powers it does not have.

He said the regulation attempted to control the smoking ban on private property, such as businesses, as well as outdoor public places.

It is also a form of taxation, according to Burress, because the business owners are required to purchase things such as  “no smoking” signs and to remove ashtrays.

“There is no grant of authority by any legislative agency which would allow the respondents (health board) to impose this cost upon private businesses,” he wrote.

There is also no power to force legislative bodies to inform their business owners of the regulations.

“To accept the position of the respondents that there is authority for a board of health to legislate any matter relating to public health without any additional legislative mandate would allow them to abrogate the fundamental basis of our government which is government by the people,” wrote Burress. “Those individuals elected to legislative positions should create law and administrative agencies should promulgate subordinate rules.”

He didn’t believe that it was the intent of the General Assembly to allow the health board to regulate without some direction of the legislative bodies.

“The people of Bullitt County are entitled to be governed by their elected representatives and should not be subjected to additional laws enacted by an administrative agency without an express grant of authority,” wrote Burress.

Burress agreed with an argument brought up by city attorney Mark Edison in asking what would be the next regulation passed by the health board.

“To follow the respondent’s analysis would say that all of this could be justified because of ‘health’ issues. That analysis would also allow the Board of Health to regulate the time of night a person has to go to bed based upon the fact that lack of sleep influences a person’s health,” opined Burress. “This court does not believe that type of ‘Big Brother’ conduct was anticipated by the Kentucky State Legislature in its grant of power and authority to boards of health.”

Swannie Jett, director of the Bullitt County Public Health Department, said the judge’s ruling did not surprise him but he was disappointed in the wording of the decision.

“I’m not surprised...but I am disappointed,” said Jett.

In talking with his attorneys, Jett said there is a belief that the matter could be overturned by the Court of Appeals due to a lack of consideration in the ruling of the health board’s authority.

Either way, Jett said the discussion has been a positive one as the public has been able to hear about the dangers of smoking and second-hand smoke.

And none of the discussion at the hearing mentioned the merits of the ban.

Jett said the entire state is watching the local decision.

The health board will meet in a few weeks to decide the next step. However, one option could be to direct Jett to work with the local governmental agencies to see if they would be interested in passing a smoking ban.

“Now what is fiscal court going to do?” asked Jett.

Many of the public opinion surveys done have shown support for a ban of smoking in public places. Jett said the local municipalities and fiscal court would have to decide if they are willing to take up that issue.

Monica Meredith Robinson, Bullitt County attorney, said she was very pleased with the judge’s ruling.

She hoped the health department would not opt to use more tax dollars to appeal the decision.

“It was a win for the people,” said Robinson.

She said the entire lawsuit had nothing to do with the merits of smoking. Instead, she said, it was a matter of whether a non-elected board had the right to adopt laws to regulate the public.

“Who has that power?” asked Robinson.

Robinson said the health department has not publicly asked any legislative body to pass a smoking ban in her memory. The issue was taken before the Mount Washington City Council a few years ago for discussion.

There would be nothing wrong asking the various bodies to consider such an ordinance, said Robinson, because the legislative bodies are the ones who should be making that decision.

A federal lawsuit remains as Bullitt County Choice, a group of local businesses, contend that their rights have been taken away by the health department.

The health board has 30 days to appeal Burress’ decision.