|Christopher Petrini is a partner with the Boston law firm of Conn Kavanaugh Rosenthal Peisch & Ford, LLP and is town counsel to the town of Framingham. Petrini would like to thank Northeastern University law student and law clerk Sarah E. Polisner for her assistance with this article.
The recent trend in Massachusetts, and in states across the nation, has been to restrict - or altogether eliminate - the right to smoke in public spaces. In recent months, the cities of Boston, Cambridge and Somerville have gone completely "smoke-free." Upon the effective dates of these municipal ordinances, smokers were no longer permitted to light up in public spaces, including bars and restaurants.
As of the date of this article, a statewide ban remains possible, yet elusive. However, 93 cities and towns in the commonwealth have enacted measures in the last decade prohibiting smoking in public areas, including workplaces and dining establishments. Property owners, including those in Framingham, have challenged these regulations on several occasions.
In Framingham Restaurant Association v. Town of Framingham, the Superior Court dissolved a temporary restraining order in favor of the plaintiff restaurant association preventing the implementation of a 100 percent smoking ban in public places in Framingham. The court further denied the plaintiff's request for a preliminary injunction preventing the implementation of the smoking ban, ruling the Framingham Board of Health had the authority to promulgate the 100 percent smoke-free regulations notwithstanding the existence of a general bylaw passed by Framingham's Town Meeting that allowed smoking in bars and restaurants under limited circumstances.
The town of Framingham enacted its 100 percent smoke-free regulations on Jan. 23, 2002, and scheduled the new regulations to go into effect on March 1, 2003. The Board of Health later agreed to extend the effective date to May 5, 2003, the implementation date of Boston's 100 percent smoke-free ban. The adoption of the 100 percent smoke-free regulations by the Framingham Board of Health was achieved in the face of some opposition.
The opposition was based in part on a bylaw enacted by the Framingham Town Meeting in 1999 that prohibited smoking in restaurants but not in bars or restaurant bars set apart from dining areas. To comply with this new bylaw, some property owners expended money to alter affected premises. The work performed ranged from minor adjustments to significant capital improvements. The subsequent decision by the Board of Health to adopt 100 percent smoke-free regulations was viewed by some restaurant owners as an unfair measure that would render their improvements unnecessary, resulting in significant financial loss.
In spring 2002, the Board of Health sponsored an article at the annual Town Meeting to repeal the town smoking bylaw permitting smoking in limited circumstances to avoid conflict with the new 100 percent smoke-free regulation scheduled to be implemented the next year. The Town Meeting voted not to repeal the town smoking bylaw. Although the stage was set for a conflict between a conflicting Board of Health regulation and town bylaw, the battle was not joined until just four days before the effective date of the 100 percent smoke-free regulations. On the eve of its enforcement, the plaintiff restaurant association filed an action in Middlesex Superior Court and obtained an ex parte temporary retraining order preventing the implementation of the 100 percent smoke-free regulations until such time as the court could adjudicate the plaintiff's request for a preliminary injunction precluding the enforcement of the new regulations until the conclusion of the case.
The preliminary injunction request presented a conflicts of law quandary - one that pitted the Board of Health regulations against a town bylaw. Which one took precedence? The debate placed the decision of elected Town Meeting members in direct conflict with the decision made by the appointed members Board of Health.
Relying on well-established precedent established by decisions of the Supreme Judicial Court that local boards of health step into the shoes of the legislature when regulating within their realm of expertise as to matters of public health, the Superior Court determined that the 100 percent smoke-free regulations took precedence over a contrary town bylaw.
In reaching its decision, the Superior Court endorsed the broad power of boards of health to enact reasonable health regulations, a power that has been recognized on numerous occasions in Massachusetts appellate decisions. The court found that the Board of Health possessed the authority to implement the regulation in question and cited as "speculative" the restaurants' position that they would lose the value of their property improvements, or that their businesses would suffer.
The court was unwilling to bar enforcement of the new regulations on the basis of a takings argument, particularly in the absence of evidence on the record of revenue reduction sufficient to threaten the very existence of the business (the required showing of harm before courts will enter a preliminary injunction preventing the enforcement of health regulations). In dissolving the temporary restraining order and denying the association's motion for a preliminary injunction, the Superior Court took a decided stance as to which law governs.
The decision reaffirms the plenary right of Board of Health to enact reasonable health regulations, including regulations that completely ban smoking in public places, even in the face of a contrary town bylaw.
The Framingham Restaurant Association decision supports the proposition that regulations adopted by local health boards pursuant to the authority granted under Massachusetts General Laws chapter 111, section 31 preempt conflicting town bylaws. As a cautionary note, it is important to keep in mind that this decision was only at the preliminary injunction stage. It remains to be seen whether a jury will reach the same decision after a trial on the merits.
The extent to which this decision influences other courts also remains to be seen, but at present the Framingham Restaurant Association decision affirms the fact that boards of health have significant power to regulate business property owners.