Another Ban Failed: ?Bullitt County
Court overturns Bullitt smoking ban
June 19, 2014
By Bailey Loosemore
The Kentucky Supreme Court on Thursday overturned a smoking ban approved three years ago by the Bullitt County Board of Health.
The board exceeded its authority, the court said, so the ban is invalid.
Opponents and supporters of the ban — which prohibited smoking in all workplaces, including bars and restaurants — argued their cases before the Supreme Court in April. The hearing followed differing rulings from Bullitt Circuit Court and the state Court of Appeals.
When the board approved the ban in 2011, it said preventing health risks caused by secondhand smoke falls under its jurisdiction through state law.
Bullitt Fiscal Court and the eight cities in the county claimed in a lawsuit that Fiscal Court is the only legislative body that can enact a countywide smoking ban.
Bullitt Circuit Judge Rodney Burress agreed that the board did not have that authority and stopped the ban before it took effect.
The state Court of Appeals later overturned Burress’ ruling, saying the board has the right to impose regulations involving public health, including a smoking ban.
The decision from the Supreme Court reverses the Court of Appeals ruling and reinstates the Bullitt Circuit Court judgment.
The Supreme Court opinion, by Justice Bill Cunningham, acknowledges that the tobacco industry has greatly affected the state economically while also contributing to nearly 8,000 deaths a year from smoking-related illnesses.
But the decision is not about health risks, the opinion states. It’s about which governmental entity has the right to make a law.
State law allows boards of health to adopt regulations “necessary to protect the health of the people,” but the Supreme Court opinion says the law does not provide the power to “adopt any regulation relating to that broad field.”
The court warned that if unelected administrative agencies continue to receive increased power, a “fourth branch of government — the regulatory state” — could come into play.
Assistant County Attorney John Spainhour, representing Bullitt Fiscal Court and the eight cities, said the General Assembly could give boards of health authority to regulate smoking, but he’s unsure if the Bullitt County case will have that large an effect.
In January, Bullitt Fiscal Court banned smoking in county buildings, while declining suggestions to enact a wider ban.
Attorney Phillip Scott, representing the Board of Health, said the members are disappointed by the Supreme Court decision.
“It is clearly a setback for the public health personnel throughout the commonwealth because we firmly believe this is a public health issue,” Scott said.