Saturday, September 27, 2003

Lexington smoking ban halted

Appeals court puts hold on law until suit by businesses is resolved

By Murray Evans
The Associated Press

LEXINGTON - Opponents of an indoor smoking ban won a temporary reprieve Friday, as a court blocked the ban from taking effect in Kentucky's second-largest city. The ban would have begun Monday.

The Court of Appeals said a judge considering a lawsuit filed by bar and restaurant owners acknowledged the law could cause them "irreparable injury," yet he refused to block it while he heard the case. The appeals court decided "it is equitable and judicious to preserve the ... status quo" until the lawsuit is resolved.

The ban was approved by the Lexington-Fayette Urban County Council in July and is the first of its kind in Kentucky, the nation's second-largest tobacco producer after North Carolina. Under the ban, smoking would be prohibited in most public buildings.

A three-judge panel of the court is to have a hearing Oct. 6 on whether to further delay the ban until Fayette County Circuit Judge Laurance VanMeter rules on the lawsuit filed by the Lexington-Fayette County Food and Beverage Association.

After the appeals court's action Friday, the local government in Lexington appealed to the state Supreme Court, which declined to intervene.

John Walters, the attorney for the business group, called both decisions victories for restaurant and bar owners.

"It certainly indicated that the Court of Appeals wants to consider the issue further and look at the merits behind our argument," Walters said. "Ultimately, this issue may end up in front of the Supreme Court, but I feel like that Court of Appeals had set a time to hear the argument that was expedited, and I feel that panel should be given the opportunity to issue the decision."

Lexington Vice Mayor Mike Scanlon supports the ban, despite being a restaurateur. Scanlon, who owns five Applebee's restaurants in Lexington, said he thinks the ban will prevail despite Friday's ruling.

"I don't know what the bad news is, except there is a stay," he said. "As much as they're going to be a lot of nonsmokers disappointed, this is democracy doing its job, and while it's inconvenient, the process is working."

During a hearing this week in VanMeter's courtroom, Walters argued that the state had reserved the authority to regulate tobacco use, that a portion of the city's ordinance - which says smokers must be a "reasonable distance" from entrances to the restaurant when smoking - was vague, and that the ban would interfere with the right of restaurant and bar owners to make a living.

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