Local Smoking Ordinance Interpreted: LAFAYETTE FOOTBALL BOOSTERS, INC. V. COM. (COA 8/24/2007)

LAFAYETTE FOOTBALL BOOSTERS, INC. V. COM.
GOVERNMENT:  LOCAL ORDINANCES, SMOKING BAN ORDINANCE, STATUTORY INTERPETATION
2006-CA-001750
PUBLISHED: VACATING AND REMANDING
PANEL: NICKELL PRESIDING; COMBS CONCURS; WINE CONCURS IN PART AND DISSENTS IN PART FILING SEPARATE OPINION
COUNTY: FAYETTE
DATE RENDERED: 08/24/2007

The Appellants ( “Boosters”) are six not-for-profit booster clubs charged with violating a smoking ban ordinance enacted by the Lexington Fayette Urban County Government (LFUCG). Each Booster was cited  by the Health Department for allowing smoking to occur in a building that was
open to the public during a bingo game.

Discretionary review was granted by COA to consider the April 18, 2006, opinion and order of the Fayette Circuit Court which held the Boosters are not exempt from the smoking ban ordinance, reversed the dismissal of the Fayette District Court’s charges, and remanded the matter to the Fayette District Court for further proceedings.  COA also reviewed an order of the same court that overruled a motion to reconsider and vacate its April 18, 2006, opinion and order.

COA reversed and remanded to the Fayette Circuit Court for specific findings and further
proceedings.

The facts were undisputed.  LFUCG had enacted a smoking ban ordinance with the declared purpose of prohibiting “smoking in all buildings open to the public.”  The ban was not absolute, however, as several locations were exempted from the ordinance including dwellings (with some limitations), rooms or halls being used for private social functions, retail tobacco stores, tobacco warehouses, theatrical stages (with appropriate signage), indoor smoking areas in government office buildings, and “facilities operated by private organizations.”  It is this last exemption that is at the heart of this appeal.

The Commonwealth filed a motion in limine asking the District Court to prohibit the Boosters from claiming they were private organizations and therefore exempt from the smoking ban. The ordinance defines a private organization as, “[a]n establishment which maintains selective members, is operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member’s guest and is not profit oriented.”

The District Court found the Boosters qualified as private organizations under the ordinance, and were therefore exempt from obeying and enforcing the ban because of a specific exemption adopted by the LFUCG.

The Circuit Court then concluded that once the Boosters opened the doors of the bingo hall to the general public without restriction, they were not operating the game as a private organization and therefore they were required to prohibit smoking inside the building.

The COA held the Circuit Court erred in failing to rule on whether the District Court correctly found the Boosters are private organizations and therefore may claim the private organization exemption. Thus, COA reversed and remanded to the Fayette Circuit Court for a specific finding on whether the Boosters qualify as private organizations.

The second contention advanced by the Boosters is that the Circuit Court overstepped its judicial authority and violated the separation of powers doctrine by adding words to the ordinance that the LFUCG did not adopt.

The COA noted it may construe an ordinance liberally, but not to the point that the words take on a meaning that was wholly unintended by the governmental body that adopted them and read the ordinance as enacted and in its entirety.  Because there is no limiting language in the ordinance as it pertains to “facilities operated by private organizations,” the COA will not add such limitations by judicial fiat. 

Thus the COA reversed and remanded to the Fayette Circuit Court for a specific finding on whether the Boosters are “private organizations” as that term is defined in the LFUCG smoking ban ordinance. If the Circuit Court finds the Boosters are private organizations, then they are exempt from enforcement of the ordinance according to the clear, unambiguous and unqualified language of Section 14- 98(1)(f) and the charges shall be dismissed with prejudice. If, however, the Circuit Court finds the Boosters are not private organizations, the dismissal of the charges shall be reversed and the matter shall be remanded to the District Court for trial or other appropriate resolution of the charges.

Digested by Michael Stevens

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