WILL COMMISSIONER at DEPARTMENT of HEALTH & HUMAN SERVICES DO THE RIGHT THING?
 

No one has the authority to give a town permission to contradict or break the State laws.

The Colebrook Smoking ban cannot go into effect until the Commissioner of the New Hampshire Department of Health and Human Services (DHHS) approves the towns special restaurant permit that's sole purpose is to ban smoking.

Read our letter asking the question, "What will the Commissioner do?" written to the Chief Legal Council, Program Support Office of the DHHS.  6/3/02

 
June 3, 2002

Frank Nachman
Chief Legal Council, Program Support Office
New Hampshire Department of Health and Human Services
129 Pleasant Street
Concord, NH 03301-6505

Dear Mr. Nachman:

I am writing on behalf of Colebrook residents who are concerned because our town voted on May 29th to put into effect a health ordinance banning smoking in restaurants.  I have a question about how the Commissioner of Health and Human Services will respond to the forthcoming request from our town.  I had sent this exact question to Mr. John Martin before the vote, and he telephone me advising me that he is not in a position to speak for the Commissioner.

COMMISSIONER'S APPROVAL Presently, the NH Indoor Smoking act gives restaurant owners the authority to designate smoking sections. (Statutes 155.64- 155.77)  We also know that any town's authority to enact ordinances must be found in grants of power from the State legislature. (Powers and Duties of Town, Power to Make Bylaws 31:39)  Subparagraph (j) further defines towns' authority to regulate conditions in restaurants in accordance with the provisions of RSA 147:1. "The health officers of towns may make regulations relative to the ... health conditions for issuing a license to restaurants ... operating within the town limits, subject to the approval of the commissioner of the department of health and human services." (RSA 147:1,II)

Will the Commissioner of the Department Of Health and Human Services approve Colebrook's regulations banning smoking in restaurants?  If so, how does the Commissioner justify giving a town authority to contradict state law?

PREEMPTION  As we've been talking to government representatives and employees about this concern, we have heard some conflicting opinions regarding a town's authority to make laws that contradict State laws.  One phrase I heard from several sources was that towns "may make ordinances which are more stringent, but the state standards are the minimum."  Based on my research, I believe these people are taking language out of context.

The general rule in New Hampshire regarding conflicts between municipal ordinances and state statutes is quite simple:  if there is any conflict between a municipal ordinance and a state statute, the state statute controls. ( New Hampshire Practice Local Government Law, Volume 14, Chapter 24, Ordinances, Section 913.)

Though no one has legally challenged a New Hampshire town's authority to ban smoking in restaurants, the City of Marquette, Michigan was legally challenged for trying to ban smoking in restaurants despite their state statutes to the contrary. A trail court and appeals court (3/13/01 Michigan Restaurant Association v City of Marquette No. 217232, Marquette Circuit Court, LC No. 98-035362-CZ) ruled in favor of the restaurant owners.  The Michigan Supreme Court refused to hear an appeal.  Obviously Michigan is not New Hampshire, but the Michigan Court's opinion would likely apply in any state because of the universal doctrine of preemption.
 

"This case involves an amendment to a Marquette city ordinance.  The amendment placed a total ban on smoking in restaurants.  Plaintiffs argued that the amendment was in conflict with a state statute governing nonsmoking seating in food service establishments and sought to regulate an area already preempted by state law.   The trial court agreed and granted summary disposition in favor of plaintiffs under MCR 2.116 (C)(10).  Defendant appeals by right. We affirm.

Defendant argues that the Michigan statute mandating a minimum number of nonsmoking seats in food service establishments does not preempt the ordinance prohibiting smoking in restaurants and that the Marquette ordinance is not in conflict with state law because it is more stringent than the state statutory standards regarding nonsmoking sections in restaurants.  We disagree.

... In order to determine whether the Marquette ordinance is in conflict with a state statute, this Court must examine whether the ordinance banning smoking in restaurants in inconsistent with or and extension of what the Legislature intended.  In essence, to determine whether a direct conflict exists, this Court must consider whether the ordinance prohibits what state law permits.

... If the language used is clear, then the Legislature must have intended the meaning it has plainly expressed, and the statute must be enforced as written."
 

I conclude from my research that Colebrook has no authority to ban smoking in restaurants.  If you agree with the findings of my research, I'd appreciate if you correct those you come across who are mistaken about towns' universal authority to make more stringent laws than the state.  If I am incorrect, I'd appreciate if you have the time to correct me.

Sincerely,
Colebrook Resident

Enclosures:
"Epidemiology faces its limits", award winning article, The National Association of Science Writers
"Discussion of Source, Claims of 50,000 deaths from Passive Smoking", Congressional Research Service

cc:
Mr. John Martin, Legal Coordinator, NH DHHS
Paul Hartgen, Executive Director, New Hampshire Lodging and Restaurant Association.
Honorable Betsey Patten, Chairman, Municipal and County Government Committee
Betsey Miller, Attorney for Municipal and County Government Committee
Andrew Cline, Editor, Editorial Section, The Union Leader
Robert P. Ambrose, Deputy Secretary of State