Posted by Mary Ann Stewart

In March, 2011, the Bullitt County Board of Health adopted county-wide regulations prohibiting smoking in workplaces, bars, restaurants, public spaces and certain outdoor areas. This set off a firestorm of controversy, culminating in a lawsuit brought by the Bullitt County Fiscal Court and several Bullitt County cities against the local board of health. The county and cities argued that the board of health, which is governed by a non-elected body whose members are appointed by the fiscal court, had exceeded its authority in that it was exercising legislative powers which lie exclusively within the province of either the elected bodies; namely, the fiscal court or the cities.

The Circuit Court ruled in favor of the county and cities. However, in December, 2012, the Kentucky Court of Appeals reversed and upheld the local board of health’s smoke-free regulation. The Court of Appeals stated that the local board of health’s authority was based on the Kentucky statute which provides that “…a board of health shall…adopt administrative regulations…necessary to protect the health of the people…”. The Court further stated that so long as the regulations enacted by the local board of health are not prohibited by another law or in conflict with the administrative regulations of the Kentucky Cabinet for Health and Family Services, then the regulations are a valid exercise of administrative authority.

As to the question of an appointed board adopting regulations, the Court of Appeals, relying upon a 1913 Kentucky Supreme Court decision, stated “if the legislature sees proper to have the police laws of the State looking to the preservation of the health of the public, executed by a body of officials selected and chosen with reference alone to their fitness for that delicate and important task, instead of imposing it on the fiscal courts, or town councils, it is clearly within their power to do so.”

The Court of Appeals’ decision and the Circuit Court’s decision demonstrate the classic struggle over questions as to when personal liberties give way to the government’s interest in promoting and protecting public health, and which governmental authority is best charged with the responsibility to enact public health laws – the elected bodies represented by the fiscal courts or the appointed bodies charged with the duty of protecting the public health. This classic struggle is not over yet. The county and cities are seeking discretionary review of the Opinion by the Kentucky Supreme Court.