Medical groups fight for local smoking ban

Business owners say they should have the right to decide if smoking is allowed in their establishments.

By Tanya Albert amednews correspondent — Posted March 1, 2004

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Tobacco is the No. 1 cash crop in Kentucky. But the local government banned smoking of the state's top crop in Lexington- and Fayette-area public buildings, including bars and restaurants.

The ordinance, passed last year, immediately came under attack. Now the AMA, Kentucky Medical Assn. and others are arguing to the state Supreme Court that state laws should not wipe the local smoking prohibition off the books.

The Lexington-Fayette Urban County Government is the first local government to pass a smoking ban in Kentucky. But the law, which was set to kick in last September, has yet to take effect. The Lexington-Fayette County Food and Beverage Assn. challenged the ordinance in court.

The Kentucky Supreme Court stayed the ordinance while it winds its way through the legal system. A lower court judge last year threw out the lawsuit, but the business association appealed. The state Supreme Court is scheduled to hear arguments in the case March 10.

The AMA says that ensuring that the Lexington-area law and others like it succeed is important to improve public health.

"So much of our progress in tobacco control is based on what we can achieve in the policy arena," said AMA Trustee Ronald M. Davis, MD. "It is most difficult to get tobacco legislation passed at the federal level, and it is hard to get it passed at the state level because the tobacco lobby is so well-funded. It is easiest to get legislation passed at this level -- the county or city level."

And once such a measure is passed, it is important to keep it in place, Dr. Davis said.

That's why the AMA/State Medical Society Litigation Center along with the KMA, Americans for Nonsmokers' Rights and the Tobacco Control Legal Consortium filed a brief urging the court to uphold the law.

"There is no doubt that second-hand smoke is a public health hazard," the groups stated. "Reports and studies by the U.S. surgeon general, the Centers for Disease Control and Prevention, the American Medical Association and countless other medical authorities have all reached the same conclusion: Secondhand smoke causes disease and death."

The arguments for and against

The businesses in the Lexington-Fayette County Food and Beverage Assn. aren't advocating smokers' rights, said John Walters, the attorney representing the group. Instead, they are fighting for business owners' rights to make decisions about how they run their own shops.

The group argues that the local law is unconstitutional. It violates state laws designed to ensure that business owners don't encounter laws that create unreasonable interference with their business decisions. Bar and restaurant owners fear that they will lose business if the local ordinance is allowed to go into effect.

"Business owners should be able to run their business as they see fit," Walters said.

The AMA, KMA and others, though, don't agree with that take on the local measure. In their brief, they argue that the ordinance is exactly the kind of statute that the Kentucky Legislature intends for local governments to pass because it protects the public from "the serious health consequences of secondhand smoke."

"Local governments are expressly granted the authority to promulgate regulations relative to health and safety under [Kentucky law]," the brief states. "That a smoking ban law constitutes a rule relative to health, safety and welfare of the public is a question well-settled by medical authorities, scientists, physicians and government agencies at all levels. Therefore, Lexington-Fayette has the authority to regulate secondhand smoke in public places."

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Case at a glance

Venue: Kentucky Supreme Court
At issue: Whether state laws preempt a local ordinance that bans smoking in public places.
Potential impact: Physicians and others argue that the ordinance protects people from secondhand smoke. Business owners say the law interferes with their right to operate their businesses as they see fit.

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