Tuesday, October 7, 2003

Lexington smoking ban still on hold

By Joe Biesk
The Associated Press

FRANKFORT - The Kentucky Court of Appeals decided late Monday to extend an injunction on the Lexington smoking ban, at least until the circuit court can rule on the case.

In a 2-1 decision, the appeals court further found that the lower court had "erred in denying the temporary injunction." The panel's decision may be appealed to the state Supreme Court.

"We cannot ignore that substantial issues have been raised concerning the scope of the actions required of business operators to prevent smoking on their premises and to remove or 'disable' ashtrays and other smoking paraphernalia," Judge Sara Combs wrote in the court's four-page decision. "The ramifications of the language of the ordinances are open-ended and uncertain while penalties for violation of these ordinances range from considerable monetary fines to criminal prosecution."

Both sides of the Lexington smoking ban debate met in court Monday morning for a hearing before a three-judge appellate panel on further extending an injunction on the ban. Late last month the state Court of Appeals granted an emergency injunction on the smoking ban, which otherwise would have started last week.

Smoking ban opponents wanted the ban delayed to prevent "irreparable" harm to Lexington businesses before the circuit court has had a chance to rule. The request for an injunction on the smoking ban headed to the Court of Appeals after a Fayette Circuit Court judge initially denied the injunction.

"We're very pleased with the ruling of the Court of Appeals," said John Walters, an attorney for the Lexington-Fayette County Food and Beverage Association. "We feel they made the correct ruling."

Some Lexington businesses that allow smoking may be financially injured if the ban goes into effect, Walters said.

Phillip Scott, an attorney for the Lexington Health Department, said the injunction should be denied because there aren't enough "serious questions" to grant the delay.

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