Saturday, September 13, 2003

Suit filed to overturn Lexington smoking ban

Group of bar, restaurant owners claims city overstepped authority

The Associated Press

LEXINGTON - A group of bar and restaurant owners filed a lawsuit seeking to overturn a citywide smoking ban in public buildings that is to take effect later this month.

In its suit, filed Thursday in Fayette County Circuit Court, the Lexington-Fayette County Food and Beverage Association argues that the city overstepped its authority by regulating tobacco use.

That power rests solely with state government, the suit said.

"We have a strong argument," said John Walters, an attorney representing the group.

The lawsuit names council members, Mayor Teresa Isaac, the Fayette County health department and the Board of Health as defendants.

A hearing on the suit was scheduled for next Friday. The coalition hopes to derail the ordinance before it takes effect Sept. 29.

At the hearing, Judge Laurance VanMeter could decide whether to grant a temporary injunction to prevent the county health department from enforcing the ban until the courts have ruled on the issue. If VanMeter denies the request, the group is prepared to appeal, Walters said.

"We will continue to fight it for as long as it goes," he said.

The ban would outlaw lighting up in nearly all enclosed public places, such as restaurants, theaters and bars.

Anti-smoking advocates said they were confident the ordinance would withstand the challenge.

"We were just waiting for it," said Lisa Greathouse, chairwoman of Bluegrass Action, a coalition that supports a smoke-free community. "Anything can happen, but I feel confident that we have a strong law."

Phil Scott, an attorney for the health department, said he intends to prepare a response to the lawsuit by the middle of next week. He would not comment on the suit, except to say: "There is nothing in there that has surprised us in respect to what they've argued before."

In its suit, the association argues that Kentucky laws and regulations make it impossible for local governments to regulate smoking in public.

Among the laws cited is the Food, Drug and Cosmetic Act, which the lawsuit says gives the Kentucky Cabinet for Health Services exclusive power to dictate and enforce public health standards.

The lawsuit also claims that the anti-smoking ordinance is vague, which would prevent consistent enforcement.

It also says the smoking ban infringes on the rights of business owners.

Lexington became Kentucky's first city to approve a smoking ban in restaurants, bars and most other public buildings.

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