Legal Issue

Whether a county ordinance prohibiting smoking in most enclosed areas open to the public was valid.


The County Council in Lexington-Fayette, Kentucky enacted a local ordinance prohibiting smoking in most retail buildings. The Food and Beverage Association, a nonprofit corporation whose members consisted largely of food and beverage sellers in Fayette County, claimed that state law preempted the ordinance and that parts of the ordinance were overly broad, unconstitutionally vague, and violated business owners’ rights to transact business. The trial court, on cross-motions for summary judgment, upheld the ordinance.  The case then bypassed the Kentucky Court of Appeals and was appealed directly to the Kentucky Supreme Court.

On January 23, 2004, the Tobacco Control Legal Consortium filed an amicus brief, arguing that state law did not preempt the smoke-free ordinance and that regulating smoking is within a local government’s police power to protect the public’s safety and health. We argued that the state legislature neither expressly nor impliedly preempted local governments from passing smoke-free ordinances, since state statutes do not address the issue of second-hand smoke.


On May 4, 2004, the Kentucky Supreme Court held that the ordinance prohibiting the use of tobacco products in public places did not conflict with state law that the legislature neither expressly nor impliedly intended to preempt the local ordinance, and that it was within the County’s police power to enact the ordinance. The court also held that despite the term “smoking paraphernalia” being unconstitutionally vague, the ordinance could go into effect.

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