McCracken Circuit Judge
Jeff Hines ruled Thursday that
the ban is valid even though it
may not appeal to everyone.“I feel like I’m right, the public
tells me I’m right,” Todd
said after
the hearing.“The
support
from everybody
has been
overwhelming.
“All I want to do
is run my
business,
and I want a free hand in doing
it.”
Todd sued the city July 10,
challenging the smoking ordinance.
His attorneys, Jeremy Ian
Smith and Kevin Long, asked
the judge to lift the ban while
Todd’s lawsuit is pending. They
said his business is suffering
as a result of the ban.
On Monday, Hines denied
their request for a temporary
restraining order, but they also
had asked for a temporary injunction
on the ban.
Smith and Long said they
expected a hearing on that motion
Thursday, not a ruling on
the ordinance itself.
“We disagree, but we respect
his opinion,” Smith said, adding
that they will decide whether
to appeal the decision after
reading the judge’s order.
Hines’ decision pleased City
Manager Jim Zumwalt.“The results were the results
I expected,” he said. “The ordinance
had
been carefully
drafted
by the
city attorney
after
reviewing
ordinances
adopted and
judicially
challenged in other
jurisdictions.”
Todd has been challenging
the ordinance since it took effect
April 1 by permitting patrons
to smoke at his billiards
hall. He has a citation pending
in McCracken District Court
for violating the ban.
According to the ordinance,
the city can take a business
owner’s license for three violations
of the ban in 12 months.
Todd said he finds that possibility distburing.
Before announcing his decision,
Hines said he had studied
the matter carefully.“Of course, personal opinions
don’t matter, so I guess I
won’t state them,” he said.“In my reading of the ordinance
and understanding of
police power granted to municipalities,
this ordinance is
valid, while not appealing to
everyone,” he continued.
Todd’s attorneys had argued
the ordinance was invalid because,
as a regulation of property
use, it should have gone
through the city’s planning and
zoning commission.
David Kelly, the city’s attorney,
said the city commission
was authorized to enact the
ban.“The City of Paducah has the
power to enact an ordinance
that regulates property outside
of zoning laws,” Kelly said.
Smith protested that the
hearing was intended to discuss
the temporary injunction,
not the lawsuit itself. Kelly, however, said the
judge had to decide on the ban’s
validity. If it is valid, he said,
there cannot be an injunction
against it.“The court is going to be required
to determine once and
for all ... whether this was a
duly enacted ordinance,” he
said.
Todd will appear in district
court Aug. 23 on his citation
charge.
BY AMY BURROUGHS, aburroughs@paducahsun.com
As published in the Paducah Sun on July 27, 2007 |
