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.

Louisville Courier Journal Likes David Williams' Smoking Ban Stance!

Editorial | Williams on smoking

Kentucky Senate President David Williams has taken some shots from this page in recent years, but he got one right the other day — on an issue of great significance to the health and welfare of the entire commonwealth.

During a candidates' forum at a Kentucky Press Association meeting in Louisville, Sen. Williams offered a strong endorsement of proposed legislation to ban smoking in most public places statewide. Sen. Williams, who is a Republican candidate for governor this year, said he would vote for such a prohibition if it comes before the state Senate. He argued that secondhand smoke is a workplace safety issue and not a matter of private property rights, as many other conservatives insist.

A bill introduced by Rep. Susan Westrom, D-Lexington, would prohibit smoking in all indoor workplaces with at least one employee, including restaurants, bars and private clubs. Sen. Williams, of Burkesville, expressed support for a statewide ban several years ago as an alternative to increased taxes on cigarettes, but his KPA remarks represented a stronger stance and weren't tied to wrangling over other legislative issues.

The need for such a ban should be clear to anyone who can read. Smoking is the leading cause of preventable death in the United States, claiming about 440,000 lives annually. According to the federal Centers for Disease Control and Prevention, secondhand smoke each year causes an estimated 46,000 premature deaths from heart disease among nonsmokers and about 3,400 deaths of nonsmokers from lung cancer. Among children, secondhand smoke is a cause of severe asthma attacks, respiratory infections and sudden infant death syndrome. The dangers are especially stark for Kentucky, since the commonwealth is consistently at or near the top of surveys of state smoking rates.

Sen. Williams' forthright stand was harshly condemned by an opponent in the Republican primary, Louisville businessman Phil Moffett, a tea party candidate who said that a smoking ban is an infringement on property rights. He also said that Sen. Williams' position shows he isn't a real conservative, and that the dangers of secondhand smoke are exaggerated.

All are typical tea party reactions — ignore the evidence if it's inconvenient, assign property rights or limiting government powers a higher value than protecting citizens' health, and call your opponent names.

Meanwhile, the Democrat in the race, Gov. Steve Beshear, backs smoking cessation programs and local action to restrict smoking, but has not yet supported a statewide ban. He should. This could be an area where Gov. Beshear and Sen. Williams could cooperate and accomplish something meaningful.

David Williams Favors Statewide Smoking Ban; Phil Moffett And Gatewood Galbraith Do Not. That Speaks Volumes, Folks!

Sen. David Williams backs statewide smoking ban
By Joseph Gerth

Senate President David Williams strongly endorsed a statewide smoking ban Friday, saying it’s a workplace safety issue and not a matter of property rights as many conservatives contend.

Williams, speaking in Louisville at a Kentucky Press Association forum for gubernatorial candidates, said he would vote for such a ban if it comes to the Senate in this year’s General Assembly.

His opponent in the Republican primary, Louisville businessman Phil Moffett, said Williams’ position demonstrates that he isn’t a true conservative.

“The only thing my primary opponent does not like about big government is the fact that he’s not in charge of it,” Moffett said.

Legislation sponsored by Rep. Susan Westrom, D-Lexington, would ban smoking in all indoor workplaces with at least one employee, including restaurants, bars and private clubs.

Williams, R-Burkesville, had previously expressed support for a statewide smoking ban as an alternative to Gov. Steve Beshear’s plan to raise the tax on cigarettes several years ago.

But his comments Friday were stronger than his past statements.

“Secondhand smoke is full of carcinogens, it’s a health hazard to workers … and it ought to be stopped and now’s the time to stop it,” Williams said.

Moffett, who describes himself as a tea party candidate, argued that the scientific arguments in favor of a smoking ban — that secondhand smoke can cause a wide range of health problems — are overstated.

In addition, Moffett said, a smoking ban would be unconstitutional.

Independent candidate Gatewood Galbraith also said he opposes a statewide ban on grounds that people have the right to decide whether to allow smoking at their businesses.

Gov. Steve Beshear, who is seeking re-election and so far has no opposition in the Democratic primary, didn’t attend the forum, saying he had government business to deal with.

Campaigns for smoking bans have increased in Kentucky since the first one passed in Lexington in 2003. Now, 27 communities around the state — ranging in size from Beattyville to Louisville — have adopted them.

Williams said he would support a ban that would allow smoking in a limited number of businesses, such as cigar bars.

“I think it’s a workplace issue,” he said

When Galbraith suggested equipment that would remove smoke from the air, Williams said he opposed that.

“What about the person who can’t afford to do that. … I want to level the playing field,” Williams said.

Moffett said the proposal has nothing to do with workplace safety.

“If the government wants to ban smoking in government buildings, I have no problem with that. If government wants to tell me … that I can’t do something on my property like smoke, I have a problem with that,” he said. “It’s a property-rights issue, it’s a freedom issue, the government has no right telling me as a person that owns a piece of property … what I can do on that as long as it’s legal.”

He added: “I believe (the threat from) secondhand smoke has been overblown.”

Galbraith, a perennial candidate, took shots at both Republicans and Democrats throughout the forum, saying they were too interested in party politics to fix what is wrong with the state.

“If the people would have (elected) me the first time so solve the problems, I wouldn’t have had to run again,” said Galbraith, who has been a candidate for governor four previous times. “Neither party can produce a candidate who can disengage from the partisanship enough to actually cooperate enough with the other side to actually get the job done.”

Moffett went hard after Williams, criticizing him for voting for a bill that allowed part-time legislators who get full-time state jobs to enhance their retirement benefits, for voting for bond projects and for supporting the smoking ban.

“These are not the actions of a conservative,” Moffett said. “These are the actions of a ruling-class person, the nanny state, a liberal.”

For his part, Williams saved his harshest attacks for Beshear.

“Presently, I believe we have a governor who actually does not have an agenda,” he said in his opening statement. “He’s presented no proposal, no suggestions for change, no suggestions for improvement.”

Later he said that Beshear has “wasted” the last three years.

But in his closing statement, Williams also defended himself against Moffett’s charges, saying the claim that he is not a conservative is preposterous.

“For any primary opponent to try to paint me as a … liberal is almost laughable,” Williams said. “The bottom line of it is, I am a solid conservative, pro-growth Republican.”

U. S. Supreme Court Sides With Florida In "Takings Clause" Case Brought By Beach Front Owners.

The Supreme Court rejected a property-rights claim from some disgruntled owners of beach front in Florida Thursday, upholding instead the state's authority to pump new new sand onto an eroded shore line without paying compensation.

This extra sand became a new strip of public beach. That in turn prompted a group of property owners along Florida's East Coast to sue, contending the state had taken away their rights to a private beach. What was once ocean-front property had become ocean-view property, they said, demanding compensation for their loss.

In something of surprise, all the justices ruled for the state Thursday, and concluded that under Florida law, the state owns the sand it has added to the beaches.

The case is STOP THE BEACH RENOURISHMENT, INC. v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ET AL, No. 08–1151. Read about it here.

In December, when the case came before the court, several of its conservatives said they were inclined to protect the private property rights of the owners. In the end, however, they concluded the state law trumped these claims.

The ruling was a victory for environmentalists and state officials, and a disappointment for those who believed the Roberts Court would move quickly to strengthen property rights. But because the ruling turned on how Florida law treats beach property, it is unlikely to have a direct impact on other coastal states.

Senator McConnell wants to "reverse the sting" of the Alternative Minimum Tax; He might as well be speaking to Fletcher and the General Assembly.

Senator Mitch McConnell has a fine piece in the C-J this morning decrying the federal Alternative Minimum Tax.

Read it here.

Frankly, I think the Senator might as well be speaking to Ernie Fletcher and the General Assembly about Kentucky's (no tax pledged) Alternative Minimum Tax/Calculation -- or whatever you choose to kill it.

I call it the Small Business Incentive Killer or SBIK!

Either way you slice it, if it's BAD on the federal level as the Senator contends, is there ANY doubt that it is also BAD here in Kentucky?

Transpark or Transpork? ...

... Read about it here and here and you be the judge.

*** Let business owners decide their smoking policy. ***

Many communities all across our Commonwealth have been busy outdoing each other on how tough they can get with smoking and I applaud some of these wise efforts. I realize the EXTREME dangers of second hand smoke and do NOT want to be exposed to them. Therefore, it is appropriate for government to ban it in government buildings and structures. As a Liberty Lover however, I must draw the line when it comes to private businesses. Government has to respect the property rights of these business owners and let them decide whether or not to go smoke-free. We, as consumers, can be free also to decide which establishments to patronize and where to spend our hard earned dollars: whether at those business establishments that are smoke-free or those that are not. Freedom of our choice (yes, and that includes whether or not to die from smoking related injuries) and respect for private property rights are the basic foundations of our beloved country. And we MUST respect them.