motion for declaration of rights memorandum and order
TRANSCRIPT
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