Bowling Green Man Is First To Challenge The Constitutionality Of City's Smoking Ban.

BG man fights ordinance
Warren Circuit Court to consider complaint today
By JUSTIN STORY

Claiming the city’s impending smoking ban violates his constitutional rights, a Bowling Green auto repairman filed the first legal challenge against the ordinance Tuesday.

A hearing was scheduled for this afternoon in Warren Circuit Court to consider Mick Sherrell’s complaint against the city.

Sherrell, the owner of Quality Quick Service on Morgantown Road, filed a motion for a restraining order in an effort to halt enforcement of the ban, which is scheduled to take effect April 28 in businesses within the city limits.

Sherrell claims the ordinance will cause him immediate and irreparable harm if enforced and that it is unconstitutional.

“My right to pursue happiness under the Constitution is being violated,” Sherrell said Tuesday afternoon at his business, shortly after changing the oil in a customer’s pickup truck. “To be honest with you, what this is is an unconsidered consequence of too much government intervention into the private lives of taxpaying citizens.”

The Bowling Green City Commission passed the ordinance 3-2 in January. Sherrell was one of several people who packed the commission chambers and spoke against the ordinance then.

Exemptions are in place for exclusive tobacco retailers, nursing homes and private clubs where membership is required.

Sherrell’s legal action has no connection to a challenge to the ban that local attorney Alan Simpson has considered filing.

Simpson sent a letter last week to city commissioners in which he argued for the need to repeal the ordinance or exempt further businesses from it, stating that two businesses have authorized him to file legal action against the city if a favorable resolution cannot be reached.

Sherrell, on the other hand, said Tuesday that his rights are “not up for negotiation.”

“We’re not talking about making moonshine in the basement, we’re talking about a legal choice,” said Sherrell, who has not consulted an attorney in this matter. “I’ll be the first to put a cigarette out if it bothers somebody, but don’t come into my business and tell me what I can and can’t do about a legal choice.”

Warren Circuit Judge Steve Wilson will hear Sherrell’s case this afternoon.

If Sherrell can show the ordinance has caused him irreparable harm and has the legal grounds to obtain a restraining order, then Wilson would issue the order and a subsequent hearing would be held to determine whether a temporary injunction would be issued against the ban.

City Attorney Gene Harmon said that Bowling Green attorney Mark Alcott has been retained by the city to argue its case today.

“The legislation in other cities has withstood the scrutiny of the Kentucky Supreme Court and the city is confident that this ordinance will be upheld by the court,” Harmon said.

Reached this morning, Alcott echoed Harmon’s sentiments regarding the city’s position.

“The city of Bowling Green enacted deliberate legislation to protect public health,” Alcott said.

Bowling Green has joined several other Kentucky cities that have passed smoking bans in the last few years, including Lexington, Louisville and Glasgow. Other cities have seen their ordinances withstand legal challenges.

The Kentucky Supreme Court in a 2004 ruling upheld Lexington’s ordinance prohibiting smoking after it was challenged by the Lexington-Fayette County Food and Beverage Association, issuing an opinion that said the ban did not conflict with state law and that it was within the local government’s police power to enforce the ordinance.

Sherrell said Tuesday he would appeal any ruling that upheld the smoking ban.