Judge snuffs out smoking ban

Churchill Downs' deal unconstitutional
By BRETT BARROUQUERE
The Enquirer
Dec. 22, 2007

LOUISVILLE - As Churchill Downs goes, so goes Louisville, according to a circuit judge who struck down a citywide smoking ban citing an exemption for the famed horse track.

A Jefferson Circuit Judge ruled Friday that because an exemption in the smoking ban crafted for Churchill Downs was unconstitutional, the entire law was illegal.

"Only after voting that Churchill Downs would keep its exemption did the Council pass the Smoke Free Law; the converse of this fact is that the Council would not have passed a Smoke Free Law devoid of said exemption," Judge Steven Ryan wrote.

The decision hinged on a previous court ruling, from November, that struck down the exemption allowing smoking in some parts of the historic racetrack.

The ruling means the city cannot cite smokers, restaurants or bars for allowing patrons to light up inside.

Louisville Mayor Jerry Abramson said he will push to get a complete indoor smoking ban in place by Jan. 10. Abramson said he will call the council into session next week to start the process.

"We've come too far as a progressive, forward-thinking community to let a legal technicality stand in our way," Abramson said.

Along with trying to pass a new ban, the city will also ask Ryan to reconsider and halt implementation of the ruling, Jefferson County Attorney Irv Maze said. The city will also appeal the ruling, Maze said.

Mike Hatzell, the attorney who represents the Metro Louisville Hospitality Coalition, the group that sued over the ban, said the ruling was "exactly what we were asking for."

The decision now allows the city to pass a new smoking ban that would leave it up to individual business owners whether to allow smoking, Hatzell said.

"That way, Churchill Downs could be exempt just like the neighborhood bar down the street," Hatzell said.

Councilman Doug Hawkins, who opposed the ban, said the ruling levels the playing field between Churchill Downs and smaller businesses.

"The law was thrown out because as we argued in council, the smoking ban set up an unlevel playing field that benefited big businesses over mom-and-pop restaurants," Hawkins said.

Maze said a complete indoor smoking ban could stand up to judicial scrutiny.

"If they pass it with no exceptions, I don't know what possible avenue there would be to sue," Maze said.

Louisville's metro council passed the ban to keep smoking out of all public places except for Churchill Downs and any tobacco manufacturer that conducts research and development for tobacco products on site.

The council exempted facilities regulated by the Kentucky Horse Racing Authority.

The Metro Louisville Hospitality Coalition filed a lawsuit challenging Churchill Downs' exemption and asked that the ban be overturned as arbitrary and vague.

The smoking ban replaced a less-stringent ordinance that allowed smoking in bars and restaurants that receive less than 75 percent of their revenue from the sale of food.

Louisville is among several Kentucky cities to ban smoking in a state that has regularly led the nation in the production of burley tobacco, an ingredient in cigarettes.