dissenting.
Respectfully, I disagree with the decision upholding the Board of Health’s power to enact the rule in question. The question is not whether the General Assembly preempted the field of lead poisoning control by enacting KRS 211.900-211.905 and 211.994. The question is whether the Louisville and Jefferson County Board of Health has the authority to enact a rule legislative rather than administrative in character. In my view it does not.
The Louisville and Jefferson County Board of Health is created pursuant to KRS 212.350 to perform the functions of a county department of health. KRS 212.370 defines its powers and duties, which are administrative rather than legislative in nature. KRS 212.240 specifies that the duties of county health departments is to administer and enforce, not to legislate. The Louisville and Jefferson County Board of Health is an administrative agency and has no power to legislate. Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418 (1948). Properly interpreted, the Board of Health’s power to adopt rules and regulations is limited solely to enactment of regulations appropriate to carry out the legislative mandates of legislative bodies and regulations of the state’s Cabinet for Human Resources. Otherwise interpreted it violates the doctrine of separation of powers.
The Kentucky Constitution, §§27 and 28 provides for “three distinct departments” of government, none of which “shall exercise any power properly belonging to either of the others.”
*523In LRC v. Brown, Ky., 664 S.W.2d 907 (1984), we discussed the constitutional doctrine of separation of powers between legislative and administrative agencies, forbidding legislative encroachment into the power of the executive branch. Here we have the converse of that proposition, an administrative agency seeking to exercise legislative power.
The problem here is not that the state statute is so comprehensive as to preempt the field of lead poisoning control from the operation of local government, nor that the regulation by the Board of Health conflicts with the state statute (although there is a reasonable argument that it does). The problem here is that the rule in question was not enacted to carry out a state statute or regulation of the Cabinet for Human Resources, but to expand the law applicable to restricting the use of lead based substances. It is a local ordinance, legislative in character, adding a new and more restrictive rule.
For instance, it is one thing for the City of Louisville or the Jefferson County Fiscal Court, duly elected legislative bodies, to enact a lower speed limit in certain areas as a safety ordinance, and another thing for the local police department to do so. So too the Board of Health is simply the health officer for Jefferson County, not elected by the people to legislate, but selected by those who were so elected to carry out legislative policy. The Board of Health is empowered to enact regulations to carry out legislative power — state or local — but not to enact ordinances declaring illegal the activities of citizens that are otherwise lawful.
City of Ashland v. Ashland Supply Co., 225 Ky. 123, 7 S.W.2d 833 (1928), cited in support of the authority of the Board of Health to legislate lead poisoning rules more restrictive than state statutes on the same subject, involved a local ordinance enacted by the city council where the state statute was not preemptive. It did not approve a local department of health exercising legislative authority. Barnes v. Jacobsen, Ky., 417 S.W.2d 224 (1967) is also distinguishable because it deals with the Board of Health’s power to require permits to construct sewage disposal facilities, not with its power to legislate.
The state act on Lead Poisoning Prevention is directed to protecting children from ingesting poisonous lead paint. It provides standards and methods appropriate to accomplish this purpose. The Board of Health’s rule differs from the state legislation in both scope and application. While it may not conflict with the state law, it does not provide for its enforcement, but instead addresses other unlegislated areas. If there is a problem here where local action is needed in addition to state action, and is appropriate, then those elected to legislate in the local area must provide a solution, not the Board of Health which has no authority to legislate regardless of its good intentions.
I would affirm the Court of Appeals and the trial court. The criminal charges filed against Do, Inc., should be dismissed because the Board of Health’s regulation was beyond its authority.
STEPHENS, C.J., and STEPHENSON, J., join in this dissent.