Lexington Fayette Cty Food v. Urban Cty Gov
| Citation | 131 S.W.3d 745 |
| Decision Date | 22 April 2004 |
| Docket Number | No. 2003-SC-0990-I.,No. 2003-SC-0978-TG.,2003-SC-0978-TG.,2003-SC-0990-I. |
| Parties | LEXINGTON FAYETTE COUNTY FOOD AND BEVERAGE ASSOCIATION, Appellant, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; Lexington-Fayette Urban County Council and Its Members: Paul Brooks; Fred Brown; George Brown, Jr.; Bill Cegelka; Dick DeCamp, Jr.; Chuck Ellinger II; Bill Farmer, Jr.; Linda Gorton; Gloria Martin; Al Mitchell; Jennifer Mossotti; Sandy Shafer; David B. Stevens M.D.; Jacques Wigginton, Jr.; Mike Scanlon, Vice Mayor of Lexington-Fayette Urban County Government and as member of the Lexington-Fayette Urban County Council; Teresa Ann Isaac, in her official capacity as Mayor of Lexington, Kentucky; Lexington-Fayette Urban County Board of Health & Charles Gorton, as Acting Commissioner of Fayette County Board of Health; Lexington-Fayette Urban County Health Department, Appellees. and Lexington Fayette County Food and Beverage Association, Movant, v. Lexington-Fayette Urban County Health Department; Lexington-Fayette Urban County Board of Health; Lexington-Fayette Urban County Government; Lexington-Fayette Urban County Council and Its Members: Paul Brooks; Fred Brown; George Brown, Jr.; Bill Cegelka; Dick DeCamp, Jr.; Chuck Ellinger II; Bill Farmer, Jr.; Linda Gorton; Gloria Martin; Al Mitchell; Jennifer Mossotti; Sandy Shafer; David B. Stevens M.D.; Jacques Wigginton, Jr.; Mike Scanlon, Vice Mayor of Lexington-Fayette Urban County Government and as member of the Lexington-Fayette Urban County Council; Teresa Ann Isaac, in her official capacity as Mayor of Lexington, Kentucky; Lexington-Fayette Urban County Board of Health & Charles Gorton, as Acting Commissioner of Fayette County Board of Health; Charles Gorton, as Acting Commissioner of the Lexington-Fayette Urban County Board of Health, Respondents. |
| Court | United States State Supreme Court (Kentucky) |
This appeal is from an opinion and order of the Fayette Circuit Court which sustained a motion by the Lexington-Fayette Urban County Government for a summary judgment and denied a motion for summary judgment from the Lexington Fayette County Food and Beverage Association. The effect was to have the complaint of the Food and Beverage Association dismissed and the temporary injunction dissolved. The Court of Appeals denied the motion of the Food and Beverage Association for emergency injunctive relief. Ultimately, this Court accepted transfer of the appeal.
The principal issue is whether the authority of local government to regulate smoking in business places of public accommodation is preempted by state law. Stated differently, the question is whether a local government has the authority to enact an ordinance which prohibits smoking in public buildings for the purpose of protecting the public from the effects of second-hand smoke inhalation. In order to decide this matter, we must consider whether an ordinance of this nature is a proper exercise of police powers and whether or not a local government is preempted by state law from enforcing such an ordinance. The resolution of this matter turns on an issue of law.
The significant arguments of the Food and Beverage Association are that the ordinance is preempted by various state statutes and regulations; that the ordinance violates the right to conduct a private business; and that parts of the ordinance are vague, and thus the entire ordinance is invalid. Also raised in this appeal is the question of whether it was error for the circuit judge to deny a motion by the association for default judgment.
This case is not about whether the decision of a local government to enact smoking restrictions is a sound policy matter. Such policy questions are completely within the province of the local legislative body and we do not find it necessary to review that decision in this matter. Any dissatisfaction can be raised at the ballot box.
The history of this case indicates that the urban county government established a task force and a committee to review health studies and public attitudes. Both of these groups reported that there was evidence of adverse health effects resulting from the exposure to second-hand smoke. Public hearings and public debate was extensive. After exhaustive investigation, the urban county government enacted an ordinance to minimize, if not entirely eliminate, the exposure of the public to such a risk.
On July 1, 2003, the Lexington-Fayette Urban County Council adopted an ordinance which effectively bans smoking in any enclosed building open to the public with certain limited exceptions such as dwellings and government buildings. The ordinance eliminated smoking in all restaurants and bars in the county, including cigar bars, nightclubs and taverns.
The association argues that the smoking ban ordinance is preempted by superior state law. We disagree.
It has long been recognized that a municipal corporation, pursuant to its police power, has wide latitude to adopt ordinances which promote the health, safety, morals or general welfare of the people. U.S. Mining & Exploration Natural Resources Co., Inc. v. City of Beattyville, Ky., 548 S.W.2d 833 (1977). Among the police powers of government, the authority to promote and safeguard public health is a high priority. Graybeal v. McNevin, Ky., 439 S.W.2d 323 (1969). In Graybeal, supra, this Court upheld the fluoridation of the public water supply of the City of Somerset. Accordingly, a prohibition on smoking and the accompanying result of second-hand smoke, is well within the traditionally recognized authority of local government as a health matter.
In 1980, the General Assembly enacted various legislation known commonly as "home rule" which permitted cities to act without specific statutory authorization. Cf. Historic Licking Riverside Civic Ass'n v. City of Covington, Ky., 774 S.W.2d 436 (1989). KRS 82.082, which is applicable to the urban county government because of its status as a city pursuant to KRS 67A.060, provides that a city may exercise any power and perform any function within its boundaries that is in furtherance of a public purpose and not in conflict with constitutional or statutory law.
More directly, KRS 67A.070 regulates the legislative authority of urban county government. It provides in pertinent part:
(1) Urban-county governments may enact and enforce within their territorial limits such tax, licensing, police, sanitary and other ordinances not in conflict with the Constitution and general statutes of this state now or hereafter enacted, as they shall deem requisite for the health, education, safety, welfare and convenience of the inhabitants of the county and for the effective administration of urban-county government.
(2) Urban-county government ordinances shall be deemed to conflict with general statutes of this state only: (a) When the ordinance authorizes that which is expressly prohibited by a general statute; or (b) When there is a comprehensive scheme of legislation on the same subject embodied in a general statute.
KRS 67A.070(2)(a) is a type of direct preemption in that an ordinance may be expressly prohibited by a general statute or when there is a comprehensive scheme of legislation.
The mere presence of the state in a particular area of the law or regulation will not automatically eliminate local authority to enact appropriate regulations. Local regulation is not always precluded simply because the legislature has taken some action in regard to the same subject. For an extensive discussion of this question, see Firemen's Ins. Co. of Washington, D.C. v. Washington, 483 F.2d 1323 (C.A.D.C.1973) and Maryland and District of Columbia Rifle and Pistol Ass'n v. Washington, 442 F.2d 123 (C.A.D.C.1971).
The true test of the concurrent authority of the state and local government to regulate a particular area is the absence of conflict. The simple fact that the state has made certain regulations does not prohibit local government from establishing additional requirements so long as there is no conflict between them. Cf. Commonwealth v. Do, Inc., Ky., 674 S.W.2d 519 (1984); Adams, Inc. v. Louisville and Jefferson County Bd. of Health, Ky., 439 S.W.2d 586 (1969), which held that there is perhaps no broader field of police power than that of public health. The constitutional limitation upon the exercise of police power to regulate health is a matter of reasonableness. Concurrent local regulation is valid unless it is unreasonable and oppressive and conflicts with state regulation. City of Ashland v. Ashland Supply Co., 225 Ky. 123, 7 S.W.2d 833 (1928),
A careful examination of the record and ordinance in this case as compared to the statutes and regulations involved indicates that the local authority has not adopted an ordinance which conflicts with any statute or regulation in the individual fields sought to be controlled. See Do, Inc., supra. Protecting the public from exposure to environmental tobacco smoke, sometimes known as second-hand smoke, can be the proper object of the police power of local government. The exercise of police power for the purpose of protecting the public health has been termed "the law of overruling necessity." Se...
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