Kentucky

Clean Indoor Air

Note: On April 22, 2004 the Kentucky Supreme Court ruled 6-1 that Lexington, KY’s smokefree air ordinance was not preempted by existing state law, and did not violate the private property rights of business owners. This allows the smokefree air ordinance Lexington passed in 2003 to go into effect, and provides legal justification for other Kentucky communities seeking to enact local smokefree air ordinances.

Lexington-Fayette County Food and Beverage Association v. Lexington-Fayette Urban County Government, et al. (2004).

Government Buildings

By executive order, smoking is prohibited in all office buildings and common areas occupied by state executive branch employees. This also applies to state correctional facilities except the maximum security prison at Eddyville, KY. This order does not apply to state legislative or judicial branch employees.

EXEC. ORDER 2006-0807 (2006).

Smoking is restricted to designated areas of the state Capitol or state Capitol Annex. The governing authority for each branch of state government, each in regard to space allocated to and occupied by that respective branch of state government, may designate one or more smoking areas in the Capitol and Capitol Annex. Each smoking area shall be an enclosed area that is not a public area, is clearly designated as a smoking area, and is maintained by a ventilation system that does not disburse the smoke or smoke byproducts into any other area of the Capitol or Capitol Annex. “Public area” is defined as any hallway, office shared by more than one person, stairwell, restroom, meeting room, cafeteria, or conference room.

KY REV. STAT. ANN. § 61.167 (2004).

Except as otherwise specified for the Capitol and Capitol Annex above, a policy for smoking in governmental office buildings or workplaces shall be adopted by state government. This policy shall apply to all state-owned or operated office buildings, workplaces, and facilities, including but not limited to state-operated hospitals and residential facilities for the mentally retarded, state-operated veterans’ nursing homes and health facilities, and any correctional facility owned, operated or under the jurisdiction of the state. Any policy relating to smoking in state office buildings or workplaces shall be by executive order of the governor or action of the General Assembly and shall require the governmental authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; favor allowing smoking in open public areas where ventilation and air exchange are adequate and there are no restrictions otherwise placed on the area by the state fire marshal or other similar authority; or prohibit indoor smoking.

KY REV. STAT. ANN. § 61.165 (2006).

Except as otherwise specified for the Capitol and Capitol Annex above, a policy for smoking in governmental office buildings or workplaces may be adopted by county, municipal, special district, urban-county, charter county or consolidated local governments. Any policy adopted may apply to any office buildings, workplaces, or facilities that are owned, operated, or under the jurisdiction of that government, including but not limited to jails and detention facilities. Any such policy shall be adopted in writing by the legislative body of the government and shall require the government authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and favor allowing smoking in open public areas where ventilation and air exchange are adequate and there are no restrictions otherwise placed on the area by the state fire marshal or other similar authority; or prohibit indoor smoking.

KY REV. STAT. ANN. § 61.165 (2006).

Schools

Any person, except adult employees of the school system who smoke in a room on the school premises designated by the superintendent or principal for the purpose, who smokes tobacco products in any school building or any part of any building used for school purposes, or upon school grounds, while children are assembled there for lawful purposes, except in areas in secondary schools designated and supervised by the superintendent or principal for the purpose, shall be fined not less than $1 or more than $5.

KY REV. STAT. ANN. § 438.050 (1988).

Each board of regents or trustees for each of the state postsecondary education institutions shall adopt a written policy relating to smoking in all buildings owned, operated, or under the jurisdiction of the state postsecondary education institutions that shall either provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; favor allowing smoking in open public areas where ventilation and air exchange are adequate and there are no restrictions otherwise placed on the area by the state fire marshal or other similar authority; or prohibit indoor smoking.

KY REV. STAT. ANN. § 61.165 (2006).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: 30 cents

Date last changed: June 1, 2005 — from 3 cents to 30 cents

Year first enacted: 1936

KY. REV. STAT. ANN. § 138.140(1-3) (2005).

A tax was added to sales of cigarette papers in the state at a rate of 25 cents per package of 32 sheets.

KY. REV. STAT. ANN. § 138.140(6)(a-c) (2006).

There is created the “Cancer Research Institutions Matching Fund” in the state Treasury where one cent of the cigarette tax is deposited. One half of the moneys in the fund are available to the University of Kentucky and the other half of the moneys in the fund are available to the University of Louisville for cancer research.

KY. REV. STAT. ANN. § 164.043 (2005).

One-half cent of the cigarette excise tax goes to the Tobacco Research Trust Fund. Money appropriated to the fund goes to the Tobacco Research and Development Center at the University of Kentucky.

KY REV. STAT. §§ 248.510 et seq. (2002).

Other Tobacco Products

Snuff: 9.5 cents per unit (unit = hard container capable of containing not more than 1.5 ounces);

All other tobacco products: 7.5% of the wholesale price

KY. REV. STAT. ANN. § 138.140(4)&(5) (2005).

Revenue Collected

$177,464,000

Youth Access

Compliance/Enforcement

The Department of Alcoholic Beverage Control and the Department of Agriculture shall carry out annually random, unannounced inspections of retail establishments where tobacco products are sold or distributed for the purpose of enforcing the provisions of Kentucky Revised Statutes sections 438.305 to 438.340. The departments shall also ensure that targeted inspections are conducted at those retail establishments where, and at those times when, persons under the age of 18 are most likely to purchase tobacco products. Persons under the age of 18 may be used to test compliance only if the testing is conducted under the direct supervision of the Department of Alcoholic Beverage Control, sheriff, or chief of police, or their employees, and written parental consent has been obtained. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.330 to 438.340 (2000).

Photo ID: Any person selling tobacco products must require proof of age from a prospective buyer or recipient if the person has reason to believe that the prospective buyer or recipient is under the age of 18. “Proof of age” means a driver’s license or other documentary or written evidence that the individual is 18 years of age or older. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.310 (2000).

Penalties for Sales to Minors

No person shall sell or cause to be sold any tobacco product at retail to any person under the age of 18, or solicit any person under the age of 18 to purchase any tobacco product at retail. The first violation is subject to a fine of $100 to $500 and subsequent violations are subject to a fine of $500 to $1,000. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.310 (2000).

Penalties to Minors

No person under the age of 18 shall possess or use tobacco products. This does not apply to minors participating in compliance inspections, receipt of a tobacco product from a family member or from an employer when required in the performance of the person’s duties. Any tobacco product found in the possession of a person under the age of 18 in plain view of a law enforcement officer shall be confiscated by the officer making the charge. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. §§ 438.300 (1996) & 438.350 (2000).

Except when participating in compliance inspections, it is unlawful for any person under the age of 18 to purchase or accept receipt of or attempt to purchase or accept receipt of a tobacco product, or to offer false proof of age. It shall not be unlawful for such a person to accept receipt of a tobacco product from a family member, or from an employer when required in the performance of the person’s duties. Violations shall be punishable by a fine of $50 and 20 hours of community service for a first offense within a one-year period, and a fine of $200 and 40 hours of community service for a second or subsequent offense within a one-year period. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.311 (2000).

Sign Posting

Notice must be posted in a conspicuous place stating that it is illegal to sell tobacco products to persons under the age of 18. Fines are $100 to $500 for the first violation and $500 to $1000 for subsequent violations. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.310 (2000).

Other Provisions

All retail sales clerks must signify in writing that they understand that it is illegal under state law for persons to sell or distribute tobacco products to persons under 18 and for minors to purchase such products. The owner of the retail establishment shall keep the signed notice in a place that is easily accessible to persons conducting a compliance inspection. Any owner of a retail establishment who violates this provision is subject to a fine of $100 to $500 for each violation. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.325 (2000).

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

No wholesaler, retailer, or manufacturer of cigarettes products or tobacco products may distribute samples of these products, free of charge or otherwise, to any person under 18 years old. Violators shall be fined not less than $1,000 or more than $2,500 for each offense. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.313 (2000).

Single Cigarettes

No person may sell cigarettes in units of fewer than 20 cigarettes. Violation is a fine of not less than $100 or more than $500. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.317 (2000).

No person shall sell or distribute in this commonwealth any cigarettes the package of which does not comply with all requirements imposed by or in accordance with federal law regarding warnings, and other information on packages of cigarettes manufactured, packaged, or imported for sale, distribution, or use in the United States including, but not limited to, the precise warning label specified in the Federal Cigarette Labeling and Advertising Act. The Revenue Cabinet may suspend or revoke the license and impose a civil penalty not to exceed the greater of 500 percent of the retail value of the cigarettes involved or $5,000 for a licensee upon violation. Any person who violates this section is guilty of a Class D felony and, in addition, may be subject to a fine of $5,000 plus costs of prosecution.

KY REV. STAT. ANN. §§ 248.752, 248.756 & 248.762 (2002).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

The sale or purchase of tobacco products dispensed through a vending machine is prohibited to any person under the age of 18. Vending machines from which tobacco products are dispensed shall be located in the line of sight of the cashier for the retail establishment. This does not apply to vending machines located in factories, or bars or taverns to which minors are not permitted access. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.315 (2000).

Penalty

Any owner of a retail establishment violating this section shall be subject to a fine of $100 to $500 for each violation. This law supersedes any subsequently enacted local law, ordinance, or regulation that relates to the use, display, sale, or distribution of tobacco products.

KY REV. STAT. ANN. §§ 438.300 (1996) & 438.315 (2000).

Licensing Requirements

Requirements

Wholesalers and vending machine operators are required to be licensed by the Revenue Cabinet. Wholesalers must secure a license for each place of business and all licenses must be renewed annually.

KY REV. STAT. ANN. § 138.195 (1988).

Fee

Wholesalers: $500 per year; Vending Machine Operators: $25 per year

KY REV. STAT. ANN. § 138.195 (1988).

Smoker Protection Laws

It is an unlawful practice for an employer to: fail or refuse to hire, or to discharge any individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because the individual is a smoker or nonsmoker; limit, segregate, or classify employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect their status as an employee because the individual is a smoker or nonsmoker; or require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.

KY REV. STAT. ANN. § 344.040 (1994).

Advertising and Promotion

No cigarette or tobacco product advertising shall be posted on a billboard with display space larger than 50 square feet located within 500 feet of any elementary or secondary school building or adjacent school-owned property. Violators shall be fined at least $100 for each offense.

KY REV. STAT. ANN. § 438.047 (1992).

Note: Enforcement of the above law may be affected by the U.S. Supreme Court decision in Lorillard Tobacco Company v. Reilly, decided in 2001.

Tobacco Liability

Industry Protection

If the appellee in a civil action obtains a judgment for punitive or exemplary damages and the appellant seeks a stay of enforcement of the judgment in order to obtain review by an appellate court, the supersedeas bond for the punitive damages portion of the judgment on appeal shall not exceed $100 million. If the appellee proves by a preponderance of the evidence that a party bringing an appeal, for whom the supersedeas bond requirement has been limited, is purposefully dissipating or diverting assets outside of the ordinary course of its business for the purpose of avoiding ultimate payment of the punitive damages judgment, the limitation granted shall be rescinded and the bond requirement shall be reinstated for the full amount of the judgment.

KY REV. STAT. ANN. § 411.187 (2000).

In a civil action against a tobacco grower for damages alleged to have occurred as a result of use or consumption of tobacco products, in order for liability to be found against a grower, the plaintiff must prove by clear and convincing evidence that the tobacco that caused the alleged damage was planted, cultivated, and harvested by that specific grower and not by any other person. In a similar civil action against a warehouseman the plaintiff must prove by clear and convincing evidence that the tobacco that caused the alleged damage was sold by that specific warehouseman and not by any other person. If the suit is dismissed or the defendant prevails at trial, the defendant may be entitled to three times the entire cost of defending the action.

KY REV. STAT. § 454.455 (1998).

Tobacco Settlement

Tobacco Control Appropriations

Kentucky appropriated $3,303,000 for tobacco prevention and cessation programs for FY2009 (July 1, 2008 to June 30, 2009) from the state’s annual MSA payment and the state general fund. $2,866,000 was appropriated in FY2008.

FY2009-FY2010 Biennial Budget (H.B. 406) enacted 4/14/08 and effective 7/1/08 (FY2009) and 7/1/09 (FY2010).

Kentucky established in the State Treasury a permanent and perpetual fund to be known as the Tobacco Settlement Agreement Fund to which shall be credited any funds designated to Kentucky from the Master Settlement Agreement. Moneys in the fund are distributed as follows: 50 percent to the Rural Development Fund, 25 percent to the Early Childhood Development Fund and 25 percent to the Kentucky Health Care Improvement Fund.

KY REV. STAT. § 248.654 (2000).

The Kentucky Health Care Improvement Fund was created in the state treasury for the purpose of receipt and expenditure of moneys to improve health care and access to health insurance in the state. State tobacco prevention funding comes from this fund.

KY REV. STAT. ANN. § 194A.055 (2000).

The Lung Cancer Research Fund was created and is administered through the University of Kentucky and the University of Louisville. It will receive its funding from the Kentucky Health Care Improvement Fund.

KY REV. STAT. ANN. § 164.476 (2000).

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