Court of Appeals panel rules 2-1 that county boards of health can pass smoking bans; appeal in Bullitt County case seems likely

By Al Cross
Kentucky Health News

In Kentucky’s first appellate-court ruling on the issue, the state Court of Appeals today upheld the Bullitt County Board of Health‘s smoking ban, which is virtually the same as others enacted by several other county health boards. However, the panel’s 2-1 vote and the strength of the dissent suggests that the ruling will be appealed to the state Supreme Court.

UPDATE, Dec. 19: The county Fiscal Court voted Dec. 18 to appeal, Tom O’Neill of The Courier-Journal reports.

Health boards in Clark, Hopkins, Madison and Woodford counties have enacted smoking bans. The Hopkins County ban was upheld by the local circuit judge, whose ruling was not appealed. (Courier-Journal video story on smoking in Bullitt County bars)

In Bullitt County, the fiscal court and eight towns sued to stop the ban four days before it was to take effect last year. Bullitt Circuit Judge Rodney Burress ruled that the board lacked authority to ban smoking in public places, but the appeals court said the General Assembly had clearly given county health boards the power to impose regulations protecting public health, that secondhand smoke is a public-health issue, and that the board’s regulation is reasonable, because it is virtually the same as an ordinance upheld in Lexington.

The majority cited regulations that the Jefferson County Board of Health had enacted in the 1970s to prevent lead poisoning, and cited other court decisions saying that courts should construe public-health laws liberally. The local governments argued that the Bullitt health board has usurped legislative  power held only by them, but the 2-1 majority said the state legislature had granted the board that authority in public-health matters.

Judge Jeff Taylor of Owensboro dissented, writing that the law cited by the majority and the board was passed 58 years ago. “I harbor grave doubt that the General Assembly intended to empower health departments at that time with the authority to regulate smoking as a threat to public health,” he wrote. “In 1954, second-hand smoke was not a known public health issue.” He said the legislature had specifically authorized the Jefferson County lead program, and the Lexington ban was passed by the local council, not the Fayette County Board of Health.

Taylor noted that the Bullitt board had relied on “national and international studies on the effects of secondhand smoke,” with no local studies showing “smoking presents a threat to the health of the citizens of Bullitt County.” And even if the board had such studies, he wrote, other state laws “reserve to cities and counties the authority to regulate smoking and secondhand smoke in their respective jurisdictions.” The laws he cited do not appear to do that, but he argued that allowing health boards to enact smoking bans, he said, would give them “limitless” power to regulate guns, alcohol, sales of large-size soft drinks or “the number of cheeseburgers sold by fast-food restaurants.”

Taylor wrote, “To the extent the cities and county, and their elected officials have failed to address a perceived serious public health issue, the citizens of Bullitt County have an easy method to remedy the problem – the ballot box,” Taylor wrote. “Or, in the alternative, the Kentucky General Assembly can expressly authorize health boards to regulate smoking in each county.” To read the seven-page majority opinion and the eight-page dissent, click here.