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LEXINGTON FAYETTE CTY FOOD v. URBAN CTY GOV

No. 2003-SC-0978-TG, 2003-SC-0990-I.

131 S.W.3d 745 (2004)

LEXINGTON FAYETTE COUNTY FOOD AND BEVERAGE ASSOCIATION, Appellant, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; Lexington-Fayette Urban County Council and Its Members: Paul Brooks; Fred Brown; George Brown, Jr.; Bill Cegelka; Dick DeCamp, Jr.; Chuck Ellinger II; Bill Farmer, Jr.; Linda Gorton; Gloria Martin; Al Mitchell; Jennifer Mossotti; Sandy Shafer; David B. Stevens M.D.; Jacques Wigginton, Jr.; Mike Scanlon, Vice Mayor of Lexington-Fayette Urban County Government and as member of the Lexington-Fayette Urban County Council; Teresa Ann Isaac, in her official capacity as Mayor of Lexington, Kentucky; Lexington-Fayette Urban County Board of Health & Charles Gorton, as Acting Commissioner of Fayette County Board of Health; Lexington-Fayette Urban County Health Department, Appellees. and Lexington Fayette County Food and Beverage Association, Movant, v. Lexington-Fayette Urban County Health Department; Lexington-Fayette Urban County Board of Health; Lexington-Fayette Urban County Government; Lexington-Fayette Urban County Council and Its Members: Paul Brooks; Fred Brown; George Brown, Jr.; Bill Cegelka; Dick DeCamp, Jr.; Chuck Ellinger II; Bill Farmer, Jr.; Linda Gorton; Gloria Martin; Al Mitchell; Jennifer Mossotti; Sandy Shafer; David B. Stevens M.D.; Jacques Wigginton, Jr.; Mike Scanlon, Vice Mayor of Lexington-Fayette Urban County Government and as member of the Lexington-Fayette Urban County Council; Teresa Ann Isaac, in her official capacity as Mayor of Lexington, Kentucky; Lexington-Fayette Urban County Board of Health & Charles Gorton, as Acting Commissioner of Fayette County Board of Health; Charles Gorton, as Acting Commissioner of the Lexington-Fayette Urban County Board of Health, Respondents.

Supreme Court of Kentucky.

April 22, 2004.

Attorney(s) appearing for the Case

John W. Walters, Michael T. Davis, Golden & Walters, PLLC, Lexington, Counsel for Appellant.

Theresa L. Holmes, Leslye M. Bowman, Lexington-Fayette Urban, Margaret A. Miller, Phillip D. Scott, David Austin French, Brian Michael Johnson, Greenbaum Doll & McDonald PLLC, Lexington, Counsel for Appellees.

Joe C. Savage, Savage, Elliott, Moore, Mullins & Erdmann, LLP, Lexington, Counsel for Amicus Curiae: American Medical Association; Kentucky Medical Association; Americans for Nonsmokers' Rights; National Center for Tobacco-Free Kids; Tobacco Control Legal Consortium.

Peter Everett Brown, Lexington, Counsel for Amicus Curiae: Lexington Health United.

William A. Thielen, James Donald Chaney, Lexington, Counsel for Amicus Curiae: Kentucky League of Cities.

Opinion and Order of the Court by Justice WINTERSHEIMER.

This appeal is from an opinion and order of the Fayette Circuit Court which sustained a motion by the Lexington-Fayette Urban County Government for a summary judgment and denied a motion for summary judgment from the Lexington Fayette County Food and Beverage Association. The effect was to have the complaint of the Food and Beverage Association dismissed and the temporary...

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