“Our review of the trial court’s application of the law is de novo.”
How later courts described this case
- “Our review of the trial court’s application of the law is de novo.”
Written by the judges who cited it.
The opinion
WINE, Judge,
Concurring In Part and Dissenting In Part:
I concur with that portion of the opinion which remands this matter to the Fayette Circuit Court for a specific finding on whether the Boosters are private organizations, which was the only issue on appeal from the Fayette District Court.
However, I respectfully dissent from that portion of the opinion which suggests private organizations such as the Boosters may permit smoking in a facility owned by a third party and open to the general public.
Section 14-98 of the Lexington smoking ban ordinance provides exemptions to the general ban against smoking, including: “(l)(b) In a room or hall being used by a person or group for a private social function that is not open to the public, ...” and “(l)(f) Facilities operated by private organizations.”
At issue is how to construe the phrase “[fjacilities operated by private organizations.” The Boosters believe the exemption follows the private organizations *558 wherever they may hold a fundraiser or other function. The circuit court found that facilities not owned by private organizations, and to which the general public may be invited, are not exempt. I believe the circuit court narrowly and correctly construed this provision.
First, one of the fundamental maxims of statutory construction is that “an act ... must be considered as a whole.... ” Commonwealth v. Louisville Taxicab & Transfer Co., 210 Ky. 324 , 275 S.W. 795 (Ky. 1925). Further, words are to be given their plain meaning. Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky.2005).
Contrary to the majority opinion, it is not necessary to add the words “not open to the public” to accomplish the goal of the ordinance; to wit, ban smoking in public places. Section (f) must be read in light of the outlined general purpose of the ordinance found in Section 1 of the ordinance:
In order to serve the public health, safety and general welfare, it is the declared purpose of Sections 14-97 to 14-104 to prohibit smoking in all buildings open to the public. (Emphasis added).
“Not open to the public” modifies “private social function” not room or hall as suggested by the majority opinion. Thus, individuals or groups which rent a facility for a wedding, birthday party or meeting and only invite a select group, may permit smoking. The general public would not have access to the hall or room when used for a private purpose. Likewise, “[facilities operated by private organizations” limits access by the general public.
A second rule of statutory construction is “to ascertain and give effect to the intention of the Legislature and that intention must be determined from the language of the statute itself if possible.” Revenue Cabinet v. Comcast Cablevision of South, 147 S.W.3d 743, 748 (Ky.App.2003), quoting Moore v. Alsmiller, 289 Ky. 682 , 160 S.W.2d 10, 12 (1942). “When there is no specific statutory definition, words of a statute shall be construed according to their common and approved usage.” Revenue Cabinet v. Comcast, supra, quoting Kentucky Unemployment Insurance Commission v. Jones, 809 S.W.2d 715, 716 (Ky.App.1991). “Operate” is defined as “to conduct the affairs of; manage.” The American Heritage Dictionary of the English Language, 4th ed. “Facility(ies)” is defined as something created to serve a particular purpose; a building or place that provides a particular service or is used for a particular industry.” Id.
The Boosters do not manage or conduct the affairs of the bingo hall. They lease the facility and utilize the hall for the purpose of operating a bingo. Boosters may well operate various fields, gyms or concession stands where youth activities are held. Unquestionably, if they owned such facilities, they could permit smoking.
If, as suggested by the Boosters, the exemption follows the private organizations, then an organization such as the Shriners could rent a large facility (where the owner does not ban smoking), invite hundreds of children to enjoy a circus and permit smoking for those of the general public who purchased tickets.
Third, when interpreting a statute or ordinance, we must give “significance and effect ... to every part of [an] Act.” McElroy v. Taylor, 977 S.W.2d 929, 931 (Ky.1998), quoting George v. Scent, 346 S.W.2d 784, 789 (Ky.1961). To require the addition of “not open to the public” would ignore the stated purpose of the ordinance. Rules of statutory construction require the interpretation that harmonizes the statutes and prevents a part of the statute from becoming meaningless or ineffectual. Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky.2000).
*559 In Conley v. Sousa, 554 S.W.2d 87 (Ky.1977), the Court cited a rule of statutory construction written more than 400 years ago in COKE, Heydon’s Case (1584) 3 Rep. 7a, 7b, requiring an interpretation which would advance the remedy and suppress the mischief. Known as the “mischief rule” the interpretation should “add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.” Id. at 89 .