T COMMONWEALTH OF KENTUCKY

BULLITT CIRCUIT COURT F'1[ AI ESTRD

1 P DIVISION ONE t\,,,0

L311 MO 12: 02 CIVIL ACTION NO. 11-C1- tA)

CIRCUIT CLERK

BULLITT FISCAL COURT, BULLITT COUNTY, KENTUCKY PETITIONERS CITY CITY OF MT. WASHINGTON, KENTUCKY CITY OF SHEPHERDSVILLE, KENTUCKY CITY OF HILLVIEW, KENTUCKY CITY OF LEBANON JUNCTION, KENTUCKY CITY OF PIONEER VILLAGE, KENTUCKY CITY OF HEBRON ESTATES, KENTUCKY CITY OF HUNTERS HOLLOW, KENTUCKY and CITY OF FOX CHASE, KENTUCKY

V. MOTION FOR DECLARATION OF RIGHTS

BULLITT COUNTY BOARD OF HEALTH RESPONDENT

NOTICE

Please take notice that the Petitioners, Bullitt Fiscal Court, Bullitt County,

Kentucky; City of Mt. Washington, Kentucky; City of Shepherdsville, Kentucky; City of

Hillview, Kentucky; City of Lebanon Junction, Kentucky; City of Pioneer Village,

Kentucky; City of Hebron Estates, Kentucky; City of Hunters Hollow, Kentucky and City of

Fox Chase, Kentucky, will make the following Motion for Declaration of Rights and tender

the following Judgment for Declaration of Rights on the 28th day of March, 2011 at 9:00

a.m. EDT or as soon thereafter as can be heard by the Court at its regular Motion hour at

the Bullitt Circuit Court, Division One, Room 301, Bullitt County Judicial Center, 250 Frank

E. Simon Avenue, Shepherdsville, Kentucky 40165.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the within Motion was

delivered to the Bullitt County Sheriff for service on the Respondent the Bullitt County

Health Department, Attn: Swannie Jett, Public Health Director, 181 Lees Valley Road,

Shepherdsville, KY 40165; the Bullitt County Health Department, Attn: Dr. James R.

Cundiff, Jr., Chairman, 181 Lees Valley Road, Shepherdsville, KY 40165 and sent by

certified mail to the Hon. Jack Conway, Kentucky Attorney General, Office of the Attorney

General, Capitol Suite 118, 700 Capitol Bldg., Frankfort, KY 40601 on the day of

March, 2011.

MOTION

Pursuant to KRS Chapter 418, Petitioners, Bullitt Fiscal Court, Bullitt County,

Kentucky; City of Mt. Washington, Kentucky; City of Shepherdsville, Kentucky; City of

Hillview, Kentucky; City of Lebanon Junction, Kentucky; City of Pioneer Village,

Kentucky; City of Hebron Estates, Kentucky; City of Hunters Hollow, Kentucky and City of

Fox Chase, Kentucky, move the court to make a binding Declaration of Rights that the

proposed and/or adopted Bullitt County Board of Health, Regulation 10-01, named "A

Regulation Related to the Protection of the Public Health and Welfare by Regulating

Smoking in Public Places and Places of Employment," is void and unlawful and that the

Respondent be permanently enjoined from adopting, implementing or enforcing same.

A copy of the regulation or ordinance, given first reading and proposed to be adopted and

enacted on March 22, 2011, is attached as Exhibit A.

In support of their motion, Petitioners state:

1. Each Petitioner is a lawful political subdivision of the Commonwealth of

Kentucky, statutorily and constitutionally constituted as a municipal corporation. Each

such Petitioner has resolved to bring this action and has standing to so act pursuant to

KRS §418.045 and KRS §418.085.

2. Petitioners exercise and hold the legislative power and the right to regulate and

to exercise the police power within Bullitt County. Such right is derived by election of the

voters in Bullitt County.

3. Respondent, Bullitt County Health Department is a lawfully constituted agency

of Bullitt County where members are appointed by law. It has certain statutory duties

and obligations pursuant to KRS §212.230, KRS §212.240, and KRS §212.245.

Respondent is charged with enforcing such ordinances as the legislative bodies of the

county may direct to it pursuant to KRS §212.370.

4. On February 15, 2011, Respondent gave a first reading and now proposes on

March 22, 2011, to adopt, implement and enforce Exhibit A that purports to Regulate

Smoking in Public Places and Places of Employment in all parts of Bullitt County.

5. Such regulation usurps the legislative authority of the Petitioners and usurps

rights of the Petitioners to direct the exercise of the police power within their respective

jurisdictions reposed by the people of Bullitt County in their duly elected and constituted

legislative bodies.

6. Such regulation exceeds the statutory and regulatory authority reposed by law

in the Respondent and is void and not properly enforceable.

7. An actual controversy exists between the parties.

WHEREFORE, Petitioners demand relief as follows:

1. A Declaration of Rights that Regulation 10-01 is unconstitutional, invalid

and inoperable as a matter of law;

2. A Declaration of Rights that only the local legislative bodies of Bullitt

County, Kentucky have the power to enact restrictions on smoking in any public or private

place within Bullitt County, Kentucky;

3. A Declaration of Rights that the Bullitt County Board of Health is preempted

from enacting Regulation 10-01 by state law;

4. All further relief to which Petitioners appear entitled.

Petitioners herewith file their memorandum in support.

ci „-- BULLITT • 0 UNTY ATT R NEY

/

by A .4 Hon. T"vica Meredith R• binson, Bullitt CoWity Attorney

. John E. Spainhour, Assi8tant BullittC-6unty Attorney Hon. Tammy Baker, Assistant Bullitt County Attorney 300 S. Buckman Street Shepherdsville, KY 40165 502-543-1505 (Phone); 502-921-4538 (Fax)

MT. WASHIN TON CITY 1/ORNEY

by Ho orman Lemme, ashington City Attorney 275 Snapp Street P.O. Box 285 Mt. Washington, KY 40047 502-538-7017 (Phone)

SHEPHERDSVILLE CITY ORNEY

by Hon. ep J. .ntlan.,hepherdsville City Attorney P.O.x 5 Shepherd ville, KY 40165 502-543-2840 (Phone); 502-543-6581 (Fax)

HILLVIEW CITY ATTORNEY LEBANON JUNCTION CITY ATTORNEY PIONEER VILLAGE CITY ATTORNEY HEBRON ESTATES CITY ATTORNEY HUNTERS HOLLOW CITY ATTORNEY FOX CHASE CITY ATTORNEY

by

Hon. Mark - Edison, City Attorney 216 South Buckman Street Shepherdsville, KY 40165 502-543-5616 (Phone); 502-543-5414 (Fax)

COMMONWEALTH OF KENTUCKY BULLITT CIRCUIT COURT

DIVISION ONE r, CIVIL ACTION NO. 11-CI-

7\n Tb

FILED ATTESTED

2011 MAR 13 P 12: 03

D C. 40165

BULLITT FISCAL COURT, BULLITT COUNTY, KENTUCKY CITY OF MT. WASHINGTON, KENTUCKY CITY OF SHEPHERDSVILLE, KENTUCKY CITY OF HILLVIEW, KENTUCKY CITY OF LEBABON JUNCTION, KENTUCKY CITY OF PIONEER VILLAGE, KENTUCKY CITY OF HEBRON ESTATES, KENTUCKY CITY OF HUNTERS HOLLOW, KENTUCKY and CITY OF FOX CHASE, KENTUCKY

V. MEMORANDUM IN SUPPORT OF PETITIONERS' MOTION FOR DECLARATION OF RIGHTS

BULLITT COUNTY BOARD OF HEALTH RESPONDENT

Come the Petitioners, Bullitt Fiscal Court, Bullitt County, Kentucky; City of Mt.

Washington, Kentucky; City of Shepherdsville, Kentucky; City of Hillview, Kentucky; City

of Lebanon Junction, Kentucky; City of Pioneer Village, Kentucky; City of Hebron

Estates, Kentucky; City of Hunters Hollow, Kentucky; City of Fox Chase, Kentucky, for

their Memorandum in Support of Petitioners' Motion for Declaration of Rights, state:

I. Adoption and implementation of a county-wide smoking ban by the Bullitt County Board of Health usurps local legislative authority by an administrative body. Any law allowing such action exceeds statutory authority.

The Bullitt County Board of Health (hereinafter "the Board") is an administrative

body established pursuant to KRS Chapter 212. As such, the Board has the authority to

pass administrative regulations as stated in KRS §212.230:

"County, city-county, and district boards of health shall:

(c) Adopt, except as otherwise provided by law, administrative regulations not in conflict with the administrative regulations of the Cabinet for Health and Family Services necessary to protect the health of the people or to effectuate the purposes of this chapter or any other law relating to public health...." KRS §212.230(1)(c). (emphasis added)

Petitioners concede that the Board has authority to adopt administrative regulations;

however, in proposing the passage of Regulation 10-01, "A Regulation Related to the

Protection of the Public Health and Welfare by Regulating Smoking in Public Places and

Places of Employment," (hereinafter "Regulation 10-01"), the Board has effectively

usurped the legislative power of Bullitt Fiscal Court and the City Councils of the

respective cities located within the boundaries of Bullitt County, Kentucky. The county

(KRS §67.083) and cities (KRS §82.082) hold the express power to enact ordinances.

These legislative entities hold broad power to do whatever is necessary for the health,

safety and welfare of its residents. Barber v. Commissioner of Revenue, 674 S.W. 2d

18 (Ky. App. 1984) In drafting KRS §212.230, the legislature could not have meant to

abrogate the legislative authority of local legislative bodies and pass it off to an

administrative board, made up of appointed members, that is in no way accountable to

the people. The statute limits the power to regulate to those instances wherein the

power is not otherwise expressed. The plain meaning of the enabling statutory authority

precludes the action proposed by the Board. Only legislative bodies comprised of duly

elected members have the authority to pass laws affecting the rights of the people

located within the jurisdiction of said legislative body.

It has been held repeatedly by the Kentucky Supreme Court that only legislative

bodies may enact substantive law. Com ., Cabinet for Health and Family Services v.

Chauvin, Ky., 316 S.W.3d 279 (2010); Ky. Const. §27, §28. By enacting a smoking

ban, the Board has assumed legislative power for itself, power that rightfully belongs

with the legislative bodies of Bullitt County. On this issue, the Kentucky Supreme Court

has stated,

"Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights, or remedies, unless the intention of the legislature to effect this object is clearly expressed." Lexington-Fayette Urban County Bd. Of Health v. Bd. of Trustees of the Univ. of Ky., 879 S.W.2d 485, 486 (1994).

It is the right of the legislatures to pass substantive law. Any law to the contrary must

be strictly construed so as to not divest the state, or a subdivision thereof, of its

prerogatives, rights, and remedies. If it was the intent of the legislature to divest Bullitt

County (a subdivision of the state) of its right to legislate, this object has not been

clearly expressed in the enabling statutory authority. Neither Bullitt Fiscal Court nor any

City within Bullitt County, Kentucky has expressed an intent to divest itself of the right to

legislate in this area. If it was the intent of the legislature to give the Board the authority

to pass "any other law relating to the public health" then KRS §212.230, as stated and

explained infra, is unconstitutional.

Sections 27 and 28 of the Kentucky Constitution forbid the delegation of

legislative power to administrative boards or agencies which are part of the executive

branch of state government. Section 27 explains the separation of powers and Section

28 states,

"No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." Ky. Const. §28.

An administrative body may not perform the functions of a legislative body unless

expressly directed or permitted. The Kentucky Court of Appeals has stated,

"It is well established that the legislature may delegate power to the executive branch via an administrative agency. The agency is then given some discretion in promulgating regulations to implement the general policy set forth by the legislature." internal citations omitted. Vanhoose v. Corn., 995 S.W.2d 389 (1999).

In the case of Vanhoose v. Corn, the administrative agency was passing regulations to

implement the general policy set forth by the legislature, it was not crafting wholly new

law as is our Board.

The Kentucky Supreme Court has stated,

"Without doubt, the Legislature may authorize a board or administrative officer, such as appellee, in charge of some governmental affairs, to make police regulations, but it cannot abdicate its own police power on any subject and confer such power on an officer or a board to his or its uncontrolled discretion." Henry v. Parrish, 307 Ky. 559, 564, 211 S.W.2d 418 (1948), citing Goodpaster, Director of Insurance, v. Southern Ins. Agency, Inc., 293 Ky. 420, 169 S.W.2d 1 (1943).

In Henry (supra) the issue was whether the Jefferson County Board of Health had the

authority to require payment of a permit fee by every local food establishment within

Jefferson County. The health board took the position that it was specifically granted

power to promulgate rules and regulations regarding the public health, that such

authorized the exercise of police power, and that the exaction of the fee was a

necessary incident to the exercise of that power. The Court held,

"It is fundamental that the right to fix these fees is an incident to the exercise of a police power. Such power is sovereign and legislative. It is an inherent and plenary authority vested in the Commonwealth, given expression by legislative enactment. It is the tap root of government, out of which grow internal regulations necessary to preserve the public order, health, safety, and morals."

4

Id. at 563.

The Court went on to state,

"It is true that a state legislature may authorize boards and other agencies to exercise an administrative discretion in the application of laws enacted by it...Therefore when we say that the Legislature may not delegate its powers, we mean that it may not delegate the exercise of its discretion as to what the law shall be, but not that it may not confer discretion in the administration of the law itself. An administrative body may, of course, properly promulgate subordinate rules. But in this case the action of the Board constituted an exercise of legislative power in enacting the paramount rule. The Board actually pioneered in creating a liability not sanctioned by the lawmaking authority of the state, city or county. It invaded a new field of compulsory contribution where the ground had not been broken by a legislative body. It had no general authority of any kind to impose on any person or institution the obligation of financing the cost of its inspection services. In the absence of such authority the Board's discretion would be without limit, except as to reasonableness. It is, therefore, evident that the broad power to promulgate the rule here involved, subject to no legislative standard or guide, could not be delegated to the Board under fundamental constitutional limitations." Id. at 564-565.

As in Henry v. Parrish, 307 Ky. 559, 564, 211 S.W.2d 418 (1948) the Board has

proposed a regulation that does not assist in administration of a duly passed law, but

ultimately is the paramount rule itself. Such action has not been expressly permitted by

the legislature. The Henry Court in citing 42 American Jurisprudence, Public

Administrative Law, Section 99, stated,

"Administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. The power to make regulations is not the power to legislate in the true sense, and under the guise of regulation legislation may not be enacted. The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder. A rule which is broader than the statute empowering the making of rules cannot be sustained. Administrative authorities must strictly adhere to the standards, policies, and limitations provided in the statutes vesting power in them. Regulations are valid only as subordinate rules and

when found to be within the framework of the policy which the legislature has sufficiently defined." Id. at 566.

The Board does not have the authority to enact legislation. The Board may pass

regulations, which are subordinate rules, not paramount rules. Regulation 10-01 has

not been passed in support of a policy sufficiently defined by the legislature. The Board

has overstepped its statutorily-granted authority and has assumed the role of legislative

body.

II. To the extent KRS §212.230 is deemed to authorize the Bullitt County Health Department to adapt a proposed smoking ban regulation, KRS §212.230 is unconstitutional.

In the alternative, if KRS §212.230 is deemed to allow the adaption of Regulation

10-01, the statute is unconstitutional and must be struck down. If the legislature did

intend for local boards of health to have the authority to pass "any other law relating to

the public health," this grant of authority is extremely broad, has no legislative standard

or guide, and therefore could not be delegated to the Board on the basis of fundamental

constitutional limitations.

"Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority." Ky. Const § 2

Arbitrary regulation is prohibited. Kentucky Retirement Systems v. Bowens, 281

S.W. 3d 776 (Ky. 2009).

Ill. The field of tobacco and smoke regulation has been preempted by the Commonwealth of Kentucky and its subdivisions.

6

The Kentucky Supreme Court has held that an ordinance passed by Lexington-

Fayette Urban County Government regulating the smoking of tobacco within the

government's jurisdictional limits was not preempted by state regulation. Lexington

Fayette County Food and Beverage Assoc. v. Lexington-Fayette Urban County

Government, Ky., 131 S.W.2d 745 (2004). The Court evaluated whether state laws

regulating the sale, distribution, or use of tobacco products would preempt a local

smoking ban. At that time, the Court held that the state had not preempted the field.

This decision was made on April 22, 2004.

After that date, and in response to the decision, the Kentucky legislature passed

two laws that took effect July 15, 2004 that regulate smoking in certain government-

owned buildings and areas. These laws would not preempt a local government from

enacting a smoking ban, because the authority to regulate smoking is expressly granted

to local legislative bodies, but they would preempt an administrative agency from doing

SO.

KRS §61.167 prohibits smoking in the public areas of the Capitol and Capitol

Annex in Frankfort, Kentucky. KRS §61.165 requires a policy be adopted for smoking in

governmental office buildings and workplaces. The policy shall apply to all state-owned

or state-operated office buildings, workplaces, and facilities, including but not limited to

state-operated hospitals and residential facilities for the intellectually disabled, state-

operated veterans' nursing homes and health facilities, and any correctional facility

owned by, operated by, or under the jurisdiction of the state. KRS §61.165 (2010).

Pursuant to KRS §61.165, any policy relating to smoking in the aforementioned areas

shall be by executive order of the Governor or action of the General Assembly, and

7

shall either 1) require the governmental authority to provide accessible indoor smoking

areas in any buildings where smoking is otherwise restricted and favor allowing smoking

in open public areas where ventilation and air exchange are adequate and there are no

restrictions otherwise placed on the area by the state fire marshal or other similar

authority or 2) shall prohibit indoor smoking. id. This policy shall be adopted by state

government as to state-owned or operated buildings while a policy may be adopted by

local governments as applies to local government office buildings, workplaces, and

facilities that are owned by, operated by, or under the jurisdiction of that government.

Id.

The Court in Lexington Fayette County Food and Beverage Assoc. v. Lexington-

Fayette Urban County Government (supra) held that the smoking ban passed by

Lexington-Fayette Urban County Government was not preempted by state government.

One reason for this holding was that at that time there were no statutes or regulations

expressly related to indoor smoking. KRS §61.165, enacted after said holding, is

expressly related to indoor smoking. Lexington Fayette County Food @ 751.

Regulation 10-01 is in direct conflict with KRS §61.165 as Regulation 10-01 prohibits

smoking in city-owned and county-owned enclosed public places and enclosed places

of employment while KRS §61.165 expressly directs local governments to adopt policies

for office buildings, workplaces, and facilities owned by, operated by, or under the

jurisdiction of that government allowing the provision of accessible indoor smoking

areas and allowing smoking in open public areas. Regulation 10-01 takes away from

local governments a right conferred by KRS §61.165.

8

Local government bodies may enact smoking bans, however, because such

action has been specifically allowed by KRS §61.165. Therefore, the holding in

Lexington Fayette County Food and Beverage Assoc. v. Lexington-Fayette Urban

County Government would not change because, as a local government body,

Lexington-Fayette Urban County Government has the authority to enact a smoking ban

pursuant to KRS §61.165. While state government has preempted the field, local

governments are expressly permitted to regulate smoking within their boundaries. The

situation occurring in Bullitt County is very different because it is an administrative

agency regulating smoking, not a local governmental body. Pursuant to KRS §61.165,

local governments may adopt a policy allowing smoking in certain areas, because

Regulation 10-01 takes away this right, Regulation 10-01 is in direct conflict with KRS

§61.165. The Board is preempted from enacting Regulation 10-01 and passage of said

regulation must be deemed unconstitutional.

CONCLUSION

Regulation 10-01 infringes the legislative power reposed by law in the legislative

bodies of Bullitt County and its cities. The proposed action by the Board usurps the

rights and duties of the elected representatives of the people of the county. Such action

is in excess of the express statutory authority granted to the board under KRS

§212.230. Arguendo, any construction of KRS §212.230 that would be deemed to

dissolve authority to adopt Regulation 10-01 on the Board would render KRS §212.230

unconstitutional.

Smoke regulation is pre-empted by the State of Kentucky and the legislatives of

its respective political subdivision. This court should so adjudge.

9

BULLITT CO TY ATTORNEY /f

by on. Mon' Meredith Robinson, Bullitt Cou y Attorney

Hon. John E. Spainhour, AssistQnt County orney Hon. Tammy Baker, Assistant County Attorney 300 S. Buckman Street Shepherdsville, KY 40165 502-543-1505 (Phone); 502-921-4538 (Fax)

MT. WASHINGTON CITY A TORNEY

/ %PI AZ All by „KM Hon. N.rman Lem 275 Snapp Street P.O. Box 285 Mt. Washington, KY 40047 502-538-7017 (Phone)

Washington City Attorney

SHEPHERDSVILL CI Y ATTORNEY

by Ho 7 . :- • . Wantlan: Shepherdsville City Attorney p • :•

IF , 51:

502-543-2840 (Phone); 502-543-6581 (Fax)

HILLVIEW CITY ATTORNEY LEBANON JUNCTION CITY ATTORNEY PIONEER VILLAGE CITY ATTORNEY HEBRON ESTATES CITY ATTORNEY HUNTERS HOLLOW CITY ATTORNEY FOX CHASE CITY ATTORNEY

by Hon Mar drson, City Attorney 216 South Buckman Street

Shz • erdsville, KY 40165

Shepherdsville, KY 40165 502-543-5616 (Phone); 502-543-5414 (Fax)

COMMONWEALTH OF KENTUCKY BULLITT CIRCUIT COURT

DIVISION ON-Azi.6e2 CASE NO. 11-CI- UV-)

BULLITT FISCAL COURT, BULLITT COUNTY, KENTUCKY CITY OF MT. WASHINGTON, KENTUCKY CITY OF SHEPHERDSVILLE, KENTUCKY CITY OF HILLVIEW, KENTUCKY CITY OF LEBANON JUNCTION, KENTUCKY CITY OF PIONEER VILLAGE, KENTUCKY CITY OF HEBRON ESTATES, KENTUCKY CITY OF HUNTERS HOLLOW, KENTUCKY and CITY OF FOX CHASE, KENTUCKY

PETITIONERS

V. ORDER

BULLITT COUNTY BOARD OF HEALTH RESPONDENT

Upon Motion of the Petitioners pursuant to KRS Chapter 418 and the Court being

otherwise sufficiently advised;

IT IS HEREBY ORDERED that the Bullitt County Board of Health is permanently

enjoined from imposing, administering, and enforcing Regulation 10-01, named "A

Regulation Related to the Protection of the Public Health and Welfare by Regulating

Smoking in Public Places and Places of Employment."

Judge Bullitt Circuit Court Division I

Date