“I believe this court now
loses jurisdiction, until I
get notice from federal court that says I have
jurisdiction,” Hines said.
Dickie Todd, owner of
Side Pockets Billiards, was
cited June 7 for allowing
patrons to smoke. The ban
prohibits smoking in public
facilities, including restaurants
and bars.
Todd appeared in McCracken District Court on
June 26, the same day his
attorney, Jeremy Ian Smith, filed a motion to
dismiss the charge. He will be back in court
July 26.
In the meantime, Todd and his attorneys
filed a motion in McCracken Circuit Court on
Friday asking for a temporary restraining
order against the smoking ban.
The complaint, filed by Smith and attorney
Kevin Young, alleged two problems with
the smoking ban.
First, they said, it involves “taking of proper-
ty in violation of the 5th Amendment
to the U.S. Constitution”
because it denied Todd the right
to use his property for smoking.
The complaint also said the
ban violated city ordinances because
it was not referred to the
planning commission.
The attorneys argued that the
city’s zoning code is the means
of restricting land use. They argued
that any ordinance restricting
land use must be referred to
the planning commission, which
oversees land use restrictions.
City attorney David Kelly with
the law firm Denton & Keuler ignored
the second argument and
seized on the first.
Because Todd’s claim invokes
the U.S. Constitution, it should
be heard in federal court, he told
Hines.
“I don’t think this court has
jurisdiction,” Kelly said.
The plaintiff’s attorneys now
must drop the part of their lawsuit
relating to the U.S. Constitution,
pursue the case in federal
court or ask the federal court to
send the case back to McCracken
Circuit.
Smith and Young said they
were not expecting that outcome
and will have to discuss their options
with Todd.
Hines, bringing the hearing to
a close about five minutes after
it began, said, “I guess you could
say this hearing has gone up in
smoke.”
City Manager Jim Zumwalt
said he disagrees with the attorneys’
claim that the ban should
have gone through the planning
commission.“It is not a zoning ordinance,”
Zumwalt said. “It’s just like a
dog ordinance, building codes
and other ordinances that somewhat
touch property, but are not
zoning ordinances.”
Todd said in an affidavit that
his business has fallen about 30
percent since the ban took effect
April 1.“The smoking ban has affected
the amount of time that
individuals stay on the premises
and has affected my overall business,”
Todd wrote.
Todd said he objects to the ban
on principle; as a business owner,
he believes he has the right to
allow smoking if he wants, and
he believes voters, not the city
commission, should have decided
on the ban.
Violating the ban can bring a
$50 fine. After three violations in
12 months, a business owner can
lose a city permit or license.
By Amy Burroughs
The Paducah Sun aburroughs@paducahsun.com
As published in the Paducah Sun on July 7, 2007
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