Campbell County sued over smoking ban
Business Courier : Friday, December 3, 2010, 2:57pm EST
Northern Kentucky Choice, the League of Kentucky Property Owners and the owners of Southern Bowling Lanes and Cline’s on the River filed a lawsuit today asking the Campbell County Circuit Court to answer several questions about the legality of a smoking ban and if the ordinance as written is constitutional.
The plaintiffs are opponents to Campbell County’s Comprehensive Smoke Free Law. The lawsuit, according to a news release, is based on the unanswered question of whether a smoke free law is a restriction on property rights requiring specific due process rights under Kentucky law. To date, no city or county has sought approval of the planning commission to move forward the smoking ban restrictions.
It also asks if there are less restrictive means like Alexandria’s smoke sign law to accomplish proponent’s goal.
“We believe this ordinance is an extreme restriction on the rights of property owners. The free market has spoken in Northern Kentucky; forcing this ban will kill businesses in Campbell County,” Northern Kentucky Choice spokesman Ken Moellman, Jr. said in a news release.
The plaintiffs are asking to impede the county from enacting the proposed smoke free law until a hearing or adjudication on the issues are fully addressed and the questions raised in the lawsuit are answered.
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Suit filed over proposed smoking ban
By Mike Rutledge • mrutledge@nky.com • December 3, 2010
NEWPORT - Several opponents of Campbell County's proposed smoking ban for bars, restaurants and other public places of business filed a lawsuit Friday arguing the county has taken the wrong path toward requiring smoke-free buildings.
Attorney Steve Megerle, the former Covington city commissioner, filed the lawsuit on behalf of Cline's on the River, the League of Kentucky Property Owners, the company that owns Southern Lanes bowling alley, and Northern Kentucky Choice, an ad-hoc group opposed to the proposed smoke-free law.
The lawsuit does not seek to stop the planned Dec. 15 county fiscal court vote on the proposed smoking restrictions. Instead it argues that if a vote is taken the courts should rule Campbell County did not properly enact the ban through its zoning codes.
At stake, according to Ken Moellman Jr., spokesman for Northern Kentucky Choice, is "the right of business owners to decide what goes on inside their establishment."
Kenton County also plans to approve a similar ban, likely Dec. 21. Megerle said the groups sued only Campbell County because Kenton officials have said they planned to vote after their Campbell counterparts do so.
Moellman said he hopes when two new Campbell commissioners replace two current ones on the fiscal court in January, they will replace the ban with a law requiring businesses to post outdoor signs declaring whether they allow smoking or are smoke-free. Ban proponents instead support the greater restrictions, arguing that by protecting customers from secondhand smoke county leaders can reduce heart- and asthma attacks, and long-term smoking-related diseases such as lung cancer.
The lawsuit argues the smoke-free law "is a restriction on private property rights." It also argues that the smoking ban the county "is restricting a reasonable and economically efficient use of the owner's property," because if restaurants, for example, are not allowed to permit smoking, and that can drive away customers.
Campbell County Attorney James Daley did not respond to a call requesting his comment Friday afternoon.
"Prior to the first reading of the ordinance, neither the fiscal (court) nor any of the cities of Campbell County filed an application to amend the zoning codes of Campbell County or its sister cities," the lawsuit states.
Here's the process the opponents argue should have happened: an application is filed with the local planning commission seeking to amend the zoning code's text; the planning commission holds a public hearing and makes a recommendation to the legislative body that seeks to change the zoning; the local government then holds a trial-like hearing before adopting or rejecting the planning commission's recommendation.
"This ensures due process of law to those for whom the new text and restriction will (affect)," the lawsuit states.
If the county were to seek a text amendment to its zoning codes, that would allow cities to opt out, Megerle said in an interview.
The lawsuit raises other objections about the proposed ordinance, arguing:
The version made public does not specify whether the fines for second offenses (a $100 fine), and third- and later offenses ($250 apiece) would be civil or criminal penalties. The ordinance, the suit argues, also does not specify how people can appeal their citations.
The Northern Kentucky Independent Health Department would enforce the proposed ordinance. But no other entity in Kentucky with a smoke-free law has had an independent health department enforce the ordinance. The lawsuit argues the health department may lack statutory authority to enforce the ban. It also questions whether the department could "arbitrarily enforce" such restrictions in some areas, such as Campbell and Kenton counties, while not enforcing smoking regulations in other parts of its service area, such as Boone and Grant counties.
