An Appeal to Smoking Ban

The attorney representing American Legion Post 23 and Veterans of Foreign Wars Post 1298 in the organizations’ battle against the city’s Bond smoking ban has appealed the citation issued last week at a charitable gaming session hosted by the Legion.

Alan Simpson of Bowling Green wrote a letter Friday to the Bowling Green Code Enforcement Board requesting a hearing regarding the citation, which names Jim Manley, chief finance officer for the American Legion, as the alleged violator.

Issued Thursday - the first day the ordinance against indoor smoking went into effect - the citation has three provisions of the ordinance marked as having been violated. The citation alleges that the American Legion post allowed smoking in a building/enclosed area, failed to remove ashtrays as required by the ordinance and that the owner, manager, lessee or person in control at the post failed to ensure compliance with the ordinance.

Simpson’s letter takes issue with the fact that nothing was written in the section of the citation that allows for a statement of facts constituting the violation.

“This part of the citation is devoid of any information that would allow us to prepare a defense to this citation,” Simpson’s letter states.

In his letter, Simpson anticipates that the hearing he requests would be “quite lengthy” because he would prevent “several challenges and defenses” to the ordinance as it is applied to the American Legion post and Manley.

First-time violators of the ordinance are subject to a $25 fine, which can be doubled if they lose an appeal before the code enforcement board.

Both local veterans organizations have sought to be exempt from the ordinance, claiming that they are private organizations catering to a selective membership. The posts were unsuccessful in attempting to get a temporary injunction from Warren Circuit Judge John Grise preventing enforcement of the ordinance at their respective facilities.

Affidavits from American Legion Post Commander Roger Miller and VFW Quartermaster Malcolm Cherry claim that enforcement of the ordinance will cause guests who engage in charitable gaming at their respective posts to go elsewhere.

Revenues from gaming help pay for the operation of both facilities, according to both leaders, and Cherry has testified in court that a majority of net profits from gaming at the VFW are donated to numerous community causes and that both posts would be subject to inspections by the state Charitable Gaming Commission and potential loss of their gaming licenses if they are found in violation of the smoking ban.

The American Legion Post hosted a gaming session Sunday night, at which 161 people attended, according to Manley, who said the post would abide by the ordinance pending the results of the appeal.

If an appeal before the code enforcement board is unsuccessful, an accused violator has an option to take his case to the court system, first in district court and then in circuit court, if necessary.