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52 U. Louisville L. Rev. Online 103 (2014)
Seeing Through the Haze: Smoking Bans, Boards of Health, and the Balance of Powers in Kentucky Government
Harlen Compton*
Abstract

On an otherwise typical August morning in 2011, the Bullitt County Circuit Courtroom was crowded with press cameras and onlookers as Bullitt County government argued its case against Bullitt County government. At issue was Bullitt County Board of Health Regulation 10-01, an ordinance to “regulate smoking in public places and places of employment”. The Bullitt County Fiscal Court, along with the city councils of all eight cities within the county, opposed the validity of Regulation 10-01 on various grounds, chief among them that any new substantive legislation is the province of elected legislative bodies, and not that of administrative agencies. Given the separation of powers required by the Kentucky Constitution, the county legislature’s point seems obvious. Why then, is this issue so contentious? The so-called “smoking ban” is a classic example of confusion between ends and means. The Bullitt County Board of Health is concerned—and rightly so—with the negative health consequences of second-hand smoke exposure. Unsatisfied with the efforts, or the lack thereof, of the local legislative bodies, the Board of Health enacted a regulation to—in their view—make Bullitt County a safer place for all. However, policy decisions are rarely that simple. The ramifications of this case extend well beyond the mere regulation of smoking.

The police power, particularly when it comes to matters of the public health and safety, belongs to the legislative branch, and any legislative delegation of those powers to the executive branch is to be strictly interpreted by the courts. Although this particular issue may eventually be decided by the General Assembly, questions involving the balance of power between local government and local executive agencies will certainly continue to arise.

In this note, I do not support, oppose, or otherwise argue the merits of smoking bans as public policy or any issues concerning the health implications of second-hand smoke. The concern of this note is purely the separation of powers, and the limits placed upon the authority of Kentucky boards of health. First, I will briefly introduce the relevant situation of local government in Kentucky, followed by a brief history of the events that led to the current controversy. This will be followed by an analysis of relevant Kentucky law, including a critique of the recent decision by the Kentucky Court of Appeals in Bullitt County Fiscal Court v. Bullitt County Board of Health, and why it must be reversed by the Kentucky Supreme Court.

* Juris Doctor Candidate, May 2014, Louis D. Brandeis School of Law, University of Louisville.