[1994/oagheade.htm]

OAG 94-52

July 29, 1994

Subject: Smoking in school buildings

Written by: Lynne Schroering

Requested by: Tom Buford

Syllabus: KRS 61.165 does not apply to school districts since smoking on school premises is specifically governed by KRS 438.050.

OAGs cited: 91-137 (followed)

Statutes construed: KRS 61.165; KRS 438.050

OPINION OF THE ATTORNEY GENERAL

This opinion addresses the scope of recently enacted KRS 61.165 which requires certain government buildings with smoking policies to have indoor smoking facilities.

KRS 61.165 provides in part that:

A policy for smoking in governmental office buildings or workplaces may be adopted by state, county, municipal, special district, or urban-county governments.

(1) Any policy relating to smoking in state office buildings or workplaces shall:

(a) Be by executive order of the Governor or action of the General Assembly;

(b) Require the governmental authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and

(c) 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.

(2) Any policy relating to smoking in governmental office buildings or workplaces of counties, municipalities, special districts, or urban-county governments shall:

(a) Be adopted by the legislative body of the government;

(b) Be in writing;

(c) Require the government authority to provide accessible indoor smoking areas in any buildings where smoking is otherwise restricted; and

(d) 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.

(3) This section shall not apply to state universities, state-operated hospitals and residential facilities for the mentally ill and the mentally retarded, state-operated veterans' nursing homes and health facilities, and jails or detention facilities.

KRS 61.165.

Our office was asked the following question:

Does the requirement of 1994 SB 316 [KRS 61.165] that indoor smoking areas be provided in government buildings where smoking is restricted apply to school districts?

It is the opinion of the Attorney General that the requirements of KRS 61.165 do not apply to school districts since smoking on school premises is specifically governed by KRS 438.050. This statute provides:

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 one dollar ($1.00) nor more than five dollars ($5.00). The exception granted for smoking areas designated by the superintendent or principal shall extend to all schools.

KRS 438.050 makes it unlawful to smoke tobacco products on school premises except in a designated smoking area. The statute does not require a school to have a designated smoking area. In fact, the creation of a designated smoking room is, according to this statute, completely optional and left to the discretion of the local board of education. OAG 91-137.

KRS 438.050 dealing with smoking on school premises directly conflicts with KRS 61.165 which requires governmental buildings that have adopted a policy limiting smoking to provide an indoor smoking room. This conflict can be resolved by using a well-recognized rule of statutory construction that if two conflicting statutes exist concerning the same subject matter, one generally and the other specifically, the specific statute should control. Kampschaefer v. Commonwealth ex rel. Kampschaefer, Ky., 746 S.W.2d 567, 568 (1982).

In this situation KRS 438.050 is the specific statute since it relates to smoking on school premises while KRS 61.165 is the more general statute as it pertains to smoking in nearly all governmental offices or work places. Therefore, KRS 438.050 should control because it is the more specific statute.

KRS 438.050 gives the local board of education the authority and discretion to create a designated smoking area on school premises. In this respect, it controls over KRS 61.165 which would require the creation of an indoor smoking area. Thus, we believe that KRS 61.165, which requires that indoor smoking areas be provided in governmental buildings where smoking is restricted, does not apply to school districts.

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General