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Lexington Smoking Ruling

In paperwork filed recently, the attorney appealing the citation and fine against American Legion Post 23 for violating the city’s smoking cigarettes ban argues that the post should be exempt from the ordinance and cites a case in Lexington as being similar.

Attorney Alan Simpson of Bowling Green filed a five-page brief July 12 on behalf of James Manley, chief finance officer of Post 23, who was cited April 28 for violating the ordinance.

The argument, which will be considered by Warren District Judge Brent Potter, claims that Manley and the American Legion were within the law when the Bowling Green Police Department issued the citation during a charitable gaming session hosted by Post 23 on the first day the ordinance went into effect.

Private organizations are exempt from the ordinance, which bans smoking cigarettes in most businesses, and Simpson has claimed that, because Post 23 is exempt from federal income taxes, maintains a selective membership that operates the post, is not profit-oriented and provides food, drink and entertainment for pay only to members and their guests, it should be considered a private organization.

A citation issued by the BGPD and a $25 fine were appealed to the Bowling Green Code Enforcement Board.

After hearing testimony from Manley, Post 23 officer Malcolm Cherry and BGPD Officers Rebecca Robins and Tammy Britt, the board unanimously upheld the citation and fine May 24.

Simpson appealed the board’s decision to Warren District Court.

“Post 23 has made it clear both in practice, testimony and its pleadings, that the public has always been welcome ‘guests,’ to enjoy charitable gaming,” Simpson argues in his brief.

The city has maintained that, because members of the public are invited to charitable gaming events, the post is not exempt from the ordinance.

The dispute rests on the fact that the ordinance does not define the terms “member” or “guest.”

Simpson, in his brief, cites a case in Lexington involving the Lafayette High School Football Boosters Club in support of his position.

The club also found itself in court over smoking cigarettes at charitable gaming events. Fayette County District Court found the club to be exempt from Lexington’s ordinance against smoking cigarettes, but the decision was reversed by Fayette County Circuit Court, which ruled that once the bingo hall in question was opened to the general public, the club was no longer operating as a private organization.

The case was taken up in 2007 by the Kentucky Court of Appeals, which sided with the district court and ruled that the booster club was a private organization as determined by Lexington’s ordinance and therefore exempt.

In his brief, Simpson notes that the language regarding private organizations in Lexington’s smoking cigarettes ordinance is identical to what is set forth in the ordinance in effect here.

“Obviously, the city of Bowling Green had every opportunity to restrict the ‘private organization exemption’ to facilities ‘operated by private organizations that are not open to the public.’ They didn’t,” Simpson writes. “The language in the Bowling Green smoking cigarettes ban is identical (to Lexington’s).”

The city is anticipated to file its response by the end of next week. City Attorney Gene Harmon was unavailable for comment this morning.

Potter will consider both arguments, along with other evidence, and issue a ruling at a yet-to-be-scheduled hearing.

While the case continues to make its way through the court system, the Barren River District Health Department and the Smoke Free Communities Coalition have collaborated on the publication of a Smoke Free Restaurants and Attractions Guide, which is available at tourism offices, health departments and chambers of commerce in the Barren River area.


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