LETTER FROM CITY SOLICITOR REGARDING PROPOSED SMOKING BAN s �.
t�` JAN 18 2000
ns GIN OF SALEM
HEALTIJ J)EPT•
CITY OF SALEM - MASSACHUSETTS
WILLIAM J.LUNDREGAN Legal Department JOHN D.KEENAN
City Solicitor Assistant City Solicitor
81 Washington Street 93 Washington Street 60 Washington Street
Tel:978-741-3888 Salem, Massachusetts 01970 Tel:978-741-4453
Fax:978-741-8110 Fax:978-740-0072
January 14, 2000
Mr. Leonard Milaszewski
Chairman, Salem Board of Health
Nine North Street
Salem, MA 01970
RE: Proposed Regulation Banning Smoking in Restaurants
Dear Mr. Milaszewski:
Please find enclosed my Memorandum of Law relative to the
proposed regulation banning smoking in restaurants by the Salem
Board of Health.
If you should have any questions in the above-entitled matter,
please do not hesitate to contact me.
Very rul yo ,
W LLIAM 'DREGAN
WJL/tjm
Enclosure
JAN 18 2000
A
Memo to: Mayor Stanley J. Usovicz, Jr. EA LTHDEPT.TH
H
HEALTH
Leonard Milaszewski, Chairman, Salem Board of Health
Joanne Scott, Health Agent, Salem Board of Health
From: William J. Lundregan, City Solicitor
Dated: January 11, 2000
RE: Proposed regulation banning smoking in restaurants
I have been asked to render an opinion as to whether the Salem
Board of Health has the authority or jurisdiction to promulgate a
proposed regulation which would in effect ban smoking in
restaurants . For the reasons which follow, after careful
consideration, I have concluded that the Board of Health does not
have the authority or jurisdiction to promulgate the proposed
regulation.
The Proposed Regulation
The proposed regulation, no . 24 , " Regulation Concerning
Prohibiting of Smoking in Dining Areas of Restaurants and
Restricting of Smoking in Bar Areas," is annexed hereto in its
entirety as Exhibit A. Its central provision would ban smoking in
virtually all restaurants (section IV) and severely limit it in
the bar areas of restaurants (section V (A) (1) ) . Stand-alone bars
(i . e . without restaurant areas) would be largely exempt from the
regulation (section V(A) (2) ) .
The Pertinent Statutory Authority
Municipal boards of health have statutory authority to promulgate
regulations in many areas affecting the public health; see e. g.
G. L . c. 111, secs . 31A and 31B (removal, transportation and
disposal of refuse) , sec. 122 (nuisance) , sec. 127 (house drainage
and sewer connections) , sec. 127A (enforcement of state sanitary
code) , and sec. 143 (so-called "offensive trades) . Nowhere has the
1
state Legislature authorized municipal boards of health to
regulate smoking in restaurants (or other public places) with the
specificity shown by the foregoing sections . Therefore, such
authority must derive - if at all - from the general regulatory
power conferred upon local boards of health by G. L. c. 111, sec.
31; this provision reads as follows:
Sec . 31 . Health regulations ; summary publication; hearings ;
filing sanitary codes and related rules, etc.
Boards of health may make reasonable health regulations. A summary
which shall describe the substance of any regulation made by a
board of health under this chapter shall be published once in a
newspaper of general circulation in the city or town, and such
publication shall be notice to all persons . No regulation or
amendment thereto which relates to the minimum requirements for
subsurface disposal of sanitary sewage as provided by the state
environmental code shall be adopted until such time as the board
of health shall hold a public hearing thereon, notice of the time,
place and subject matter of which, sufficient for identification,
shall be given by publishing in a newspaper of general circulation
in the city or town once in each of two successive weeks, the
first publication to be not less than fourteen days prior to the
date set for such hearing, or if there is no such newspaper in
such city or town, then by posting notice in a conspicuous place
in the city or town hall for a period of not less than fourteen
days prior to the date set for such hearing. Prior to the adoption
of any such regulation or amendment which exceeds the minimum
requirements for subsurface disposal of sanitary sewage as
provided by the state environmental code, a board of health shall
state at said public hearing the local conditions which exist or
reasons for exceeding such minimum requirements . Whoever, himself
or by his servant or agent, or as the servant or agent of any
other person or any firm or corporation, violates any reasonable
health regulation, made under authority of this section, for which
no penalty by way of fine or imprisonment, or both, is provided by
law, shall be punished by a fine of not more than one thousand
dollars .
Boards of health shall file with the department of environmental
protection, attested copies of sanitary codes, and all rules,
regulations and standards which have been adopted, and any
amendments and additions thereto, for the maintenance of a central
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register pursuant to section eight of chapter twenty-one A.
(Emphasis added. )
Nature and Scope of Power Conferred by Sec. 31
The authority conferred upon local boards of health by sec . 31 -
" (b) oards of health may make reasonable health regulations" - is
unusually broad. It is not, however, unlimited; indeed, an
unlimited delegation of legislative power to an administrative
agency would doubtless be stricken as unconstitutional. '
Of immediate concern to us is the fact that the Supreme Judicial
Court has distinguished between the power to regulate an activity
and the power to prohibit it, and has held that the grant of
authority to local boards of health by sec. 31 involves the former
rather than the latter. Board of Health of Woburn v. Sousa , 338
Mass . 547 (1959) , involved a suit by the local board to enjoin
defendants from keeping swine on certain premises , and from
transporting offensive substances through the city streets,
without obtaining permits required by board regulations . The
defendants challenged the authority of the board to issue the
regulations in question, but the Superior Court granted the relief
sought and the Supreme Judicial Court affirmed.
Of interest to us is the following passage from the SJC' s opinion:
The board of health of a city or town, pursuant to at least three
legislative delegations of power, may require a permit for keeping
swine . G. L. c. 111, §§ 31 , 122 , 143, as amended. See §§ 146,
147, as amended . . . .
' A discussion of the constitutional prohibition against unlimited delegation
of legislative power to an administrative agency is beyond the scope of this
discussion. But see e.g. 38 Massachusetts Practice, Cella, Administrative Law
and Practice, chapter 3, sections 91 through 117 and the authorities cited
therein.
3
R
t
The authority to make the regulation has usually be found in §
143, or in one of its predecessors . In Quincy v. Kennard, 151
Mass . 563, 24 N. E. 860, it was held within the power of a board of
health to require a permit for the keeping of swine as a condition
of doing what could have been absolutely prohibited . In
considering comparable regulations in Lexington v. Miskell, 260
Mass . 544 , 546-547, 157 N. E. 598, 53 A. L. R. 808, and in City of
Waltham v. Mignosa, 327 Mass . 250, 252-254 , 98 N . E. 2d 495, § 31
was referred to in addition to § 143 . The Lexington case also
referred to § 122 . References by the court to the remedy provided
by § 147 perhaps imply that the respective regulations were
considered as adopted under § 143 . In Inhabitants of Swansea v.
Pivo, 265 Mass . 520, 521,. 523, 164 N. E. 390, the conduct of the
board in enforcing its regulations showed that it was acting under
§§ 143 and 146 , regardless of whether it had adopted its
regulation under § 31, § 122, or § 143 . In Cochis v. Board of
Health of Canton, 332 Mass. 721, 722, at page 724, 127 N.E.2d 575,
at page 577, this court while recognizing that § 31 authorized
'boards of health to make reasonable regulations, ' stated that §
143 was a section authorizing ' such boards to make specific
prohibitions ' . . . . It indicated that it was under § 143 that the
board presumably acted in promulgating * * * regulations '
absolutely prohibiting piggeries . Cf. Board of Health of Wareham
v. Marine By-Products Co . , 329 Mass . 174, 178, 107 N. E. 2d 11, a
proceeding under § 143, not involving piggeries.
The regulations of the Woburn board of health were adopted April
27, 1953 . When published, reference was made to §§ 31 , 122, and
143, among other sections of c . 111, as providing authority for
the regulations.
Prior to St . 1920, c. 591, § 17, authority to regulate piggeries by
a permit could have been found in the predecessors of §§ 122 and
143 (see R. L. c. 75, §§ 65, 91) . Section 17, by enacting what is
now c. 111, § 31 , provided a comprehensive, separate, additional
source of authority for health regulations . The new section had
been recommended by the commission (see St . 1919, c . 248 ) to
complete the work of revising and codifying the laws relating to
towns . Its report ( 1920 Senate Doc . No. 2, p. 14 ) said, ' The
provisions of law are such that considerable doubt has arisen with
regard to the powers of the board of health to make regulations .
In order to make matters clear the commission recommends the
passage of section 24 of the general bill ' (p. 27) . . . attached to
the commission' s report .
4
In the present case, the board of health has not proceeded to
enforce its regulation under §§ 143 and 146 . No order of
prohibition appears to have been served upon the defendants under
§ 146 , which provides one method for enforcing a regulation
adopted under § 143 . We therefore consider whether these
regulations could have been adopted under § 31 and § 122 , as well
as under § 143 , and whether, regardless of the section under which
they were adopted, they can be enforced in equity under G. L. c.
111, § 187 . . . without compliance with §§ 143 and 146.
In City of Malden v. Flynn, 318 Mass . 276, 277-279, 61 N. E. 2d 107,
110, it was held that after the enactment in 1937 of the specific
provisions of § 31A (see amendment by St . 1945, c. 423) and § 31B
(inserted by St . 1937, c . 282) the ' authority of boards of health
to prohibit absolutely * * * by a general regulation the
transportation of garbage * * * formerly possessed by virtue of
what is now * * * § 122, no longer exists . ' This court took the
position that the subject matter was thereafter controlled by the
very specific provisions on the subject of §§ 31A and 31B which
had in effect (318 Mass . at page 278 , 61 N . E. 2d at page 109)
' carved out of the general power of boards of health over
nuisances * * * the power to deal with the * * * transportation of
garbage, and the authority of boards over this particular
subject . ' . . . . The Malden case suggests the question whether §§
143 , 146 , and 147 and related sections so completely deal with
noisome trades like piggeries as to preclude the adoption of
regulations regulating, but not prohibiting, such trades under §§
31 and 122 . We need not decide whether complete prohibition of
all piggeries can be dealt with only under § 143 . There is, in
any event, no express statutory indication that regulation of
piggeries, by requiring permits, may not be undertaken under §§ 31
and 122 . As has been noted, § 31 was passed as legislation of
broad and general scope, after the predecessors of §§ 143, 146,
and 147 had been on the statute books for many years . The
legislative history . . . shows not purpose to limit its scope. See
Brielman v. Commissioner of Public Health of Pittsfield, 301 Mass .
407 , 409, 17 N. E. 2d 187 , 189, which refers to § 17 of the 1920
statute as establishing a ' broad power ' which is ' not subject to
the limitations of earlier rule making powers of boards of
health. '
The requirement of a permit is a traditional method of regulation,
and a regulation calling for a permit certainly may be adopted
where there exists some statutory delegation of authority (as here
may be found in § 143) to prohibit absolutely. See Butler v. Town
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of East Bridgewater, 330 Mass . 33, 36-38, 110 N. E. 2d 922, 924 ,
where, as here, the power to prohibit existed. In that case,
instead of an absolute prohibition, the town required only a
permit and invested the licensing authority 'with quasi judicial
authority to determine the facts and to pass upon the application
[ for a permit] in each instance under the serious sense of
responsibility imposed upon them by their official positions and
the delicate character of the duty entrusted to them. ' In that
case, the court distinguished Commonwealth v. Maletsky, 203 Mass .
241, 89 N. E. 245, 24 L. R.A. , N. S . , 1168 ; Goldstein v. Conner, 212
Mass . 57, 98 N . E. 701 ; and Kilgour v. Gratto, 224 Mass . 78, 112
N.E. 489, on grounds which are applicable in the present case. It
is immaterial, in determining whether a regulation requiring a
permit for a piggery may be adopted under §§ 31 and 122 , that
absolute statutory power to prohibit piggeries (which reinforces
the power to require a permit) exists most clearly under another
section (§ 143) . We hold that the regulations relating to
piggeries . . . could properly have been adopted under § 31 and §
122, and that enforcement of such regulations is permitted under §
187 . . . .
Id. , at 548-552 (footnotes omitted, emphasis added) .
Also of interest, if only by analogy (because the case was not
decided under G. L. c. 111, sec. 31) , is Commonwealth v. Rivkin,
329 Mass . 586 (1952) , in which the Court held that a state statute
providing that, " (1) ocal boards of health . . . may make and enforce
reasonable rules and regulations as to the conditions under which
all articles of food may be kept or exposed for sale, in order to
prevent contamination thereof and injury to the public health"
(emphasis added) , did not empower a local board to enact a
regulation providing that, " (n) o person shall sell, offer or
expose for sale ice cream in any form on any street, sidewalk, or
other public place."
In light of the holding in Board of Health of Woburn v. Sousa, it
is doubtful that a local board of health has the authority, in the
absence of specific legislative authorization, to ban, rather then
merely regulate, smoking or any other admittedly legal activity
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upon private property.
I am fortified in this conclusion by a host of decisions upholding
various regulations issued by local boards of health - all of
which merely regulated the activities in question: In Brielman v.
Monroe, Commissioner of Public Health of City of Pittsfield, 301
Mass . 407 (1938 ) , it was held that a local health regulation that
no person should sell milk or cream, unless certified or
pasteurized, was not unreasonable, since a strict insistence on a
high standard of purity and safety in milk is well within the
police power. Ryder v. Board of Health of Lexington, 273 Mass . 177
(1930) , upheld a regulation prohibiting the keeping of more than
two swine except with a permit from the board and in compliance
with seven conditions . Druzik v. Board of Health of Haverhill,
324 Mass . 129 (1949) , upheld a regulation which required certain
bakery products to be wrapped in cellophane before removal from
the place where produced) . City of Waltham v. Mignosa , 327 Mass .
250 (1951) , upheld a regulation forbidding the keeping of fowl
without a permit from the commission. Cochis v. Board of Health of
Canton, 332 Mass . 721 (1955) , upheld a regulation restricting the
keeping of pigs . Town of Holden v. Holden Suburban Supply Co. ,
Inc. , 343 Mass . 187 (1961) , upheld the authority of a board of
health to make reasonable regulations pertaining to the
installation of cesspools . Somewhat closer cases are Patton v.
City of Marlborough, 415 Mass . 750 (1993) , which upheld a local
health regulation that limited the operation of cigarette vending
machines to certain locations where access by minors was
restricted, and Hamel v. Board of Health of Edgartown, 40
Mass.App.Ct. 420 (1996) , which upheld as reasonably related to the
control of wastewater flow a regulation prohibiting construction
of guesthouses in specified areas . Clearly to be distinguished is
Arthur D. Little, Inc. v. Commissioner of Health and Hospitals of
Cambridge, 395 Mass . 535 (1985) , which upheld a local regulation
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3
1
prohibiting the testing, storage, transportation and disposal
within the city limits of chemical warfare agents ( ! )
None of the foregoing decisions, or any others that I have been
able to find, may be cited as authority for the proposition that
in Massachusetts the municipal boards of health may ban the
performance of a widely-accepted, widely-practiced, admittedly
legal activity upon and inside private property. Such a regulation
would certainly be an unprecedented, and in my opinion legally
unwarranted, expansion of the local board' s authority.
Smoking Ban Cases in Massachusetts
To date, only two Court cases dealing with smoking bans appear to
have been decided within this Commonwealth; and their relevance to
the matter under consideration is somewhere between remote and
nonexistent.
Town of Plymouth v. Civil Service Commission, 421 Mass . 1 (1997) ,
upheld the dismissal of a police officer in accordance with the
town personnel administrator' s rule requiring mandatory
termination for violation of G. L. c. 41, sec. 101A, which act
prohibits police officers and firefighters from continuing in
their jobs if they smoke. The Court held that the local rule was
enacted pursuant to the statutory directive, wherefore the rule
was valid and the dismissal proper. Critical to the decision in
this case was the existence of the statute which expressly (1)
bans smoking by police officers and firefighters, and (2) mandates
the dismissal of personnel who violate the ban. By contrast, no
such statutory mandate governs the matter presently under
discussion.
LeMay v. Dubois , 1996 WL 914061 (Mass . Super. 1997 ) , involved a
challenge to certain regulations restricting or prohibiting
smoking by prison inmates that had been promulgated by the
8
Commissioner of the Mass . Dept . of Correction. The Superior Court,
by Judge Thayer Fremont-Smith, entered summary judgment for the
defendants dismissing the complaint, and no appeal was taken by
the plaintiffs . Only one of the numerous grounds urged by the
plaintiffs in opposition to the regulation is germane to the
present discussion, that the regulation had been improperly
promulgated and was in excess of the Commissioner' s authority.
Central to the Court' s rejection of this argument was the fact
that the case involved a prison:
The plaintiffs further assert that 103 C .M. R. 444, was improperly
promulgated in that, in some correctional facilities, they have
been denied the right to smoke outside as specifically permitted
by the regulation. The regulation does not, however, confer any
substantive rights upon inmates . It merely provides that " inmates
may be permitted to smoke outdoors and to possess tobacco
products ." 103 C.M. R. 444 . 02 (2) , (emphasis added) . The Supreme
Court has held, moreover, that "[ p] rison regulations are not
designed to confer rights upon inmates ." Sandin v. Conner, 515
u. s. 472, 115 5 . 01 . 2293, 2299, 132 L. Ed. 2d 418 (1995) . "Prison
administrators should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and
to maintain institutional security. " Bell v. Wolfish, 441 U . S .
520, 547, 99 S.Ct. 1861, 60 L.Ed. 2d 447 (1979) .
Id. (emphasis added) . See: Annotation: Validity, construction, and
application of restrictions on use or possession of tobacco
products in correctional facilities, 66 ALR5th 237 .
I hope that no extended argument is needed to distinguish between
the rights, privileges and immunities enjoyed by prison inmates
and those enjoyed by the citizens of the City of Salem.
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Smoking Ban Cases Elsewhere in the United States
Elsewhere throughout the United States , under state law,
nonsmoking regulations have met with mixed results in challenges
to their validity. On the one hand, it has been held that they
were not preempted by state law, and that they were not beyond the
regulatory authority of a state agency. However, in another case,
a particularly sweeping prohibition on smoking in public places
was overturned as being in excess of a state agency ' s
constitutional and statutory authority . Courts have held
particular municipal nonsmoking regulations to be within the
city' s power in one case, but beyond it in others . See :
Annotation: Validity, construction and application of nonsmoking
regulations, 65 ALR4th 1205 (1989, 1998) , sec. 2 .2
Pre-emption challenges
The courts decided that nonsmoking regulations were not preempted
by the legislative authority of the state, in the following cases.
In City of San Jose v. Department of Health Services, 66 Cal .
App. 4th 35, 77 Cal. Rptr. 2d 609 (6th Dist. 1998) , review denied,
(Nov. 18, 1998) , the Court held that the Legislature, by expressly
disavowing in its Indoor Clean Air Act any intent to preempt local
regulation of tobacco smoking, and by expressly authorizing local
agencies to completely ban smoking in any manner not inconsistent
with law, impliedly decreed that where local agencies have stepped
in to regulate smoking within their own boundaries, the state ' s
administrative agencies should step back.
z Cases involving smoking bans imposed in specialized environments, such as
public schools, public transportation, movie theaters, and the like, are not
discussed in this memorandum for the reason that the decisions in those cases
typically turn, in large part, upon the unique requirements of the specialized
environments (e.g. the right and need of school officials to maintain order
and discipline in school) , and thus are of limited relevance to the broader
question presently before the house. See Annotation: validity, construction
and application of nonsmoking regulations, 65 ALR4th 1205 (1989, 1998) , secs.
5 (f) , 6, 7, 8 and 9, and the cases discussed therein.
10
Y
Boreali v Axelrod, 130 App Div 2d 107, 518 NYS2d 440, 2 BNA IER
Cas 671, 107 CCH LC T 55802 (1987, 3d Dept) , affd 71 NY2d 1, 523
NYS2d 464, 517 NE2d 1350, 2 BNA IER Cas 1213, 108 CCH LC T 55850,
was an action by state legislators and representatives of various
commercial interests to annul regulations issued by a state public
health council broadly restricting smoking in public places .
Although the Court ultimately struck down the regulations, it also
rejected the contention that the regulations were preempted by
state law. The Court explained that a state law prohibiting
smoking in certain public buildings, except in designated smoking
areas, did not expressly or impliedly indicate the legislature ' s
intent to preempt the field of tobacco use, since it was limited
in scope and purpose and was far from a comprehensive scheme to
regulate public smoking. And the legislature ' s rejection of
numerous attempts to expand that legislation did not support an
inference that there was a definitive state policy on the
regulation of smoking, the court stated, noting further that the
council ' s regulations were compatible with the state law, since
they stated that the state law was to take precedence in any
instances of conflict.
Regarding the Salem Board of Health' s proposed regulation, I am of
the opinion that it is not preempted by state legislation, and
that any challenge to the regulation on that basis would likely
fail . The state' s comprehensive ban on smoking in public places,
G.L. c. 270, sec. 22, was enacted by the Legislature in St . 1987,
c. 759, sec. 3.3 Section 5 of St. 1987, c. 759, not made a part of
the General Laws, expressly declared that,
(n) othing in this act shall be construed to permit smoking in any
area in which smoking is or may hereafter be prohibited by law
including, without limiting the generality of the foregoing, any
other provision of the law or ordinance or by-law or any fire,
health or safety regulation.
3 It has subsequently been amended by St. 1990, c. 86, and St. 1997, c. 85.
11
I interpret this passage to be an express disclaimer of any intent
on the part of the state Legislature to preempt local action in
this area; and therefore I believe that the rationale of decisions
such as those in City of San Jose v. Department of Health Services
and Boreali v Axelrod would apply to uphold the proposed
regulation in the face of a preemption challenge.
Nonsmoking Regulations Upheld as Within Agency' s Authority
In Rossie v. State/Department of Revenue, 133 Wis 2d 341, 395
NW2d 801, 1 BNA IER Cas 1048, 105 CCH LC 1 55658, 65 ALR4th 1191
(1986, App) , the court affirmed that portion of a judgment that
upheld the validity of state agency directives prohibiting
employees from smoking in the agency' s buildings except in
designated smoking areas, deciding that the directives were not
subject to statutory rule-making procedures under the statutory
definition of a "rule, " which excluded agency actions or inactions
that concerned the agency' s internal management and did not affect
private rights or interests. Note that this case involved nothing
more than the right of the state agency, as an employer, to
regulate its own workplace . Moreover, the regulation did not
impose an outright ban, since it provided for designated smoking
areas.
In City of San Jose v. Department of Health Services, 66 Cal .
App. 4th 35, 77 Cal . Rptr . 2d 609 ( 6th Dist . 1998 ) , review
denied, (Nov. 18, 1998) , the Court upheld - against a preemption
challenge only - a municipal ordinance which prohibited smoking in
" (a) ll enclosed areas of buildings which are open to the public or
which are places of employment ." This case is immediately
distinguishable from our own situation by a fact of fundamental
significance, to wit : the San Jose municipal ordinance was adopted
by the City' s legislative body.
12
Similarly, in State v. Heidenhain, 42 La Ann 483, 7 So 621 ( 1890) ,
the Court affirmed a defendant ' s conviction for violating an
ordinance that prohibited smoking in streetcars, holding that it
was within the power of a city to prohibit such behavior as a
nuisance . Once again, this case is distinguishable from our
situation by the fact that the challenged law was a municipal
ordinance.
A very broad smoking ban, imposed by a state administrative
agency, was upheld against a claim that it was in excess of the
agency' s authority in Fogle v. H & G Restaurant, 337 Md. 441, 654
A. 2d 449 (1995) . The subject regulation was promulgated by the
Commissioner of the Division of Labor and Industry (the Division)
for the purpose of protecting Maryland employees from the
hazards associated with environmental tobacco smoke (ETS) . The
regulation was promulgated under the authority of the
Maryland Occupational Safety and Health Act (the MOSH Act) ,
Maryland Code (1957, 1991 Repl .Vol . ) , §§ 5-101 et seq. of the
Labor and Employment Article, and the federal Occupational
Safety and Health Act of 1970 (the OSH Act) , 29 U. S . C. §§ 651 et
seq. Maryland ' s occupational safety and health program is
both funded and overseen by the federal OSH Act . The OSH Act
requires the Maryland Commissioner of Labor and Industry (the
Commissioner) to adopt occupational safety and health standards
that are "at least as effective" as those set forth by the
federal Occupational Safety and Health Administration (OSHA) . §
5-309 (a) ( 1) . An "occupational safety and health standard" is a
regulation that requires "the adoption or use of a means, method,
operation, practice, or process that is reasonably appropriate or
necessary to make employment and places of employment safe and
healthful . " § 5-101 (e) (2 ) . According to the MOSH Act, "[ t] he
[ Maryland Occupational Safety and Health Advisory] Board shall . . .
recommend to the Commissioner reasonable regulations : ( 1 ) to
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prevent conditions that are detrimental to safety and health in
each employment or place of employment in the State; and (2) that
the Board finds necessary to protect and to improve the safety and
health of employees . " § 5-308 . The MOSH Act also, at a minimum,
requires that in making occupational safety and health standards,
the Commissioner promulgate regulations "that most adequately
ensure, to the extent feasible on the basis of the best available
evidence, that no employee, including an employee who has regular
exposure to [ the toxic substance] during the working life of the
employee, will suffer material impairment of health or functional
capacity. " § 5-309 (c) (1) .
The regulation in question, COMAR 09 . 12 . 23 is an occupational
safety and health standard that requires all Maryland employers to
ensure that there is no smoking permitted in any enclosed
workplace and that there are "no smoking" signs posted at each
entrance to a place of employment having such an enclosed
workplace . COMAR 09 . 12 . 23 . 03 . According to the regulation, an
"enclosed workplace" means an indoor place of employment . The
definition includes, but is not limited to: all indoor work areas,
vehicles used in the course of employment that are occupied by
more than one employee, employee lounges or restrooms, conference
and meeting rooms, classrooms, employer operated cafeterias for
use of its employees, hallways, restaurants, bars and taverns, and
sleeping rooms in hotels or motels . COMAR 09 . 12 . 23 . 01 . An
important exception to this ban on smoking in all enclosed
workplaces is that employers may permit smoking in "designated
smoking rooms" as long as such facilities comply with specific
structural and ventilation requirements . These designated smoking
rooms may not be a location where an employee, other than a
custodial or maintenance employee, is required to work. COMAR
09 . 12 . 23 . 04 . Certain workplaces are completely exempted from the
regulation . Those workplaces include tobacconist establishments
14
(places that engage primarily in the sale of tobacco and tobacco-
related accessories) and analytical or educational laboratories
where smoking is necessary to the conduct of scientific research
into the health effects of tobacco smoke. COMAR 09. 12 . 23. 02 .
On the same day that the regulation was formally adopted, several
area businesses in Talbot County, along with several trade
associations, and several tobacco companies filed a complaint for
declaratory and injunctive relief and a motion for an
interlocutory injunction in the Circuit Court for Talbot County.
They sought to have COMAR 09 . 12 . 23 declared void, invalid, and
unenforceable and to enjoin its implementation. The Circuit Court
granted the injunction, but on appeal the Court of Appeals vacated
it and upheld the regulation as within the Commissioner' s
authority under the MOSHA act .
The decision in Fogle v. H & G Restaurant is the most sweeping
instance I have been able to locate of an administratively-imposed
smoking ban being upheld by an appellate Court . Because the
regulation in that case was issued under the aegis of a far more
sweeping and explicit legislative grant of regulatory authority
than our own G. L. c . 111, sec . 31, I am of the opinion that the
holding in that case has limited precedential relevance to the
question presently before this Board.
Nonsmoking Regulations Stricken as Beyond Agency' s Authority
In Alford v. Newport News, 220 Va . 584, 260 SE2d 241 ( 1979) , the
court held that a nonsmoking ordinance was an unconstitutional
exercise of the city' s police power insofar as it was applied to
require the defendant, who operated a restaurant consisting of a
single main dining room and another room used only for banquets,
to set aside one table in the main room as a nonsmoking area and
to post a no smoking notice at the entrance. Whether tobacco smoke
15
is toxic may be arguable, remarked the court, but that question is
one for the legislature rather than the courts . It is clearly
within the legislature ' s police power to abate what it finds to be
injurious to the public health, the court declared, but no matter
how legitimate the legislative goal, the police power may not be
use to regulate property interests unless the means employed are
reasonably suited to the achievement of that goal . Here, the
court decided, the means employed by the city to enforce the
nonsmoking ordinance were not reasonable, but actually tended to
defeat rather than to promote the ordinance ' s purpose .
Designating one of several dining tables in the same room as a
nonsmoking area hardly limited the amount of smoke in the air,
since any harmful effects of exhaled smoke would be ambient,
observed the court, yet the notice required by the ordinance would
lead nonsmoking diners to expect that the place they had chosen to
patronize was a wholly protected environment, and by relying on
the no smoking sign, they would be exposed to the toxic effect
from which the ordinance purported to protect them. The court
reversed the judgment against the defendant for failing to comply
with the ordinance.
More recently, in Cookie 's Diner v. Columbus Bd. of Health, 65
Ohio Misc. 2d 65, 640 NE2d 1231 (1994 , Mun) , the Court held that
although the power of a city board of health and a county board of
health to regulate smoking inside enclosed areas where the public
is invited was contained within the statutory powers granted to
the boards, and the regulations were not in conflict with state
law or pre-empted by it, nonetheless the boards ' regulations
represented prohibited lawmaking rather than permitted rule
making, and the court would not select from among the regulations
those parts that would go into effect and those which would not.
16
i
But perhaps the most extensive treatment of this issue appears in
Boreali v. Axelrod, 71 N. Y. 2d 1, 523 N . Y. S . 2d 464 , 517 N . E. 2d
1350 ( 1987 ) . There, the New York Court of Appeals declared
regulations broadly restricting smoking in public places null and
void on the ground that the state public health council had
exceeded its constitutional and statutory authority by enacting
such sweeping changes in public life . The council issued the
regulation pursuant allegedly pursuant to Sec. 225 (5) (a) of the
state Public Health Law which authorizes the council to "deal with
any matters affecting the . . . public health." I note that the
brevity and breadth of this grant is similar to that contained in
our own G. L . c. 111, sec . 31 (" Boards of health may make
reasonable health regulations" ) . After several years' worth of
efforts to obtain broad legislative restrictions on smoking had
come to naught, the public health council, purportedly acting
pursuant to Sec . 225 (5) (a) of the state Public Health Law,
promulgated a set of regulations prohibiting smoking in a wide
variety of indoor areas that are open to the public, including
schools, hospitals, auditoriums, food markets, stores, banks,
taxicabs and limousines . Under these rules, restaurants with
seating capacities of more than 50 people were required to provide
contiguous nonsmoking areas sufficient to meet customer demand.
Further, employers were required to provide smoke-free work areas
for nonsmoking employees and to keep common areas free of smoke,
with certain limited exceptions for cafeterias and lounges .
Affected businesses were permitted to prohibit all smoking on the
premises if they so choose . Expressly excluded from the
regulations ' coverage were restaurants with seating capacities of
less than 50, conventions, trade shows, bars, private homes,
private automobiles, private social functions, hotel and motel
rooms and retail tobacco stores . Additional "waivers" of the
regulations ' restrictions could be obtained from the Commissioner
upon a showing of financial hardship (10 NYCRR part 25) .
17
The Court of Appeals struck down the regulation, explaining at the
outset of its decision that :
We hold that the Public Health Council overstepped the boundaries
of its lawfully delegated authority when it promulgated a
comprehensive code to govern tobacco smoking in areas that are
open to the public. While the Legislature has given the Council
broad authority to promulgate regulations on matters concerning
the public health, the scope of the Council' s authority under its
enabling statute must be deemed limited by its role as an
administrative, rather than a legislative, body. In this instance,
the Council usurped the latter role and thereby exceeded its
legislative mandate, when, following the Legislature' s inability
to reach an acceptable balance, the Council weighed the concerns
of nonsmokers, smokers, affected businesses and the general public
and, without any legislative guidance, reached its own conclusions
about the proper accommodation among those competing interests. In
view of the political, social and economic, rather than technical,
focus of the resulting regulatory scheme, we conclude that the
Council ' s actions were ultra vires and that the order and judgment
of the courts below, which declared the Council ' s regulations
invalid, should be affirmed.
Id. , at p. 6 (emphasis added) .
The Court' s in-depth treatment of the delegation/separation of
powers issue is worth extended consideration, since I believe that
much of what is said there applies, mutatis mutandis, to our
situation:
Section 225 (5) (a) of the Public Health Law authorizes the PHC to
"deal with any matters affecting the * * * public health" . At the
heart of the present case is the question whether this broad grant
of authority contravened the oft recited principle that the
legislative branch of government cannot cede its fundamental
policy-making responsibility to an administrative agency. As a
related matter, we must also inquire whether, assuming the
propriety of the Legislature ' s grant of authority, the agency
exceeded the permissible scope of its mandate by using it as a
basis for engaging in inherently legislative activities . While the
separation of powers doctrine gives the Legislature considerable
leeway in delegating its regulatory powers, enactments conferring
18
authority on administrative agencies in broad or general terms
must be interpreted in light of the limitations that the
Constitution imposes (NY Const, art III, § 1) .
However facially broad, a legislative grant of authority must be
construed, whenever possible, so that it is no broader than that
which the separation of powers doctrine permits (see, Tribe,
American Constitutional Law § 5-17, at 288-289) . Even under the
broadest and most open-ended of statutory mandates , an
administrative agency may not use its authority as a license to
correct whatever societal evils it perceives (see, e. g. , Matter of
Council for Owner Occupied Hous . v Abrams, 125 A. D. 2d 10) . Here,
we cannot say that the broad enabling statute in issue is itself
an unconstitutional delegation of legislative authority. However,
we do conclude that the agency stretched that statute beyond its
constitutionally valid reach when it used the statute as a basis
for drafting a code embodying its own assessment of what public
policy ought to be. Our reasons follow.
Derived from the separation of powers doctrine, the principle that
the legislative branch may not delegate all of its lawmaking
powers to the executive branch has been applied with the utmost
reluctance - even in the early case law. In Wayman v Southard (10
Wheat [ 23 US] 1, 42-43) , for example, Chief Justice Marshall
observed: "It will not be contended that Congress can delegate to
the Courts, or to any other tribunals, powers which are strictly
and exclusively legislative. But Congress may certainly delegate
to others, powers which the legislature may rightfully exercise
itself * * * [ A] general [ statutory] provision may be made, and
power given to 'those who are to act under such general provisions
to fill up the details" (see also, Buttfield v Stranahan, 192 U. S.
470; Field v Clark, 143 U. S. 649) . Similarly, this court stated in
Matter of Trustees of Vil . of Saratoga Springs v Saratoga Gas,
Elec . Light & Power Co. (191 N. Y. 123, 138) that "[ a] review of
the * * * judicial authorities in this state * * * clearly shows
that while powers inherently and exclusively legislative cannot be
delegated, there is a large field in which the legislature * * *
'may certainly delegate to others powers which the legislature may
rightfully exercise itself'" (see, e. g. , Ross v Arbury, 206 Misc.
74, affd 285 App. Div. 886) .
The modern view is reflected in this court ' s statement in Matter
of Levine v Whalen ( 39 N . Y . 2d 510, 515 [ citations omitted] ) :
"Because of the constitutional provision that '[ t] he legislative
power of this State shall be vested in the Senate and the
19
t
Assembly' (NY Const, art III, § 1) , the Legislature cannot pass on
its law-making functions to other bodies * * * but there is no
constitutional prohibition against the delegation of power, with
reasonable safeguards and standards, to an agency or commission to
administer the law as enacted by the Legislature" . (Accord, Matter
of County of Oneida v Berle, 49 N. Y. 2d 515; Matter of Bates v
Toia, 45 N . Y . 2d 460 , 464 ; Matter of City of Utica v Water
Pollution Control Bd. , 5 N. Y. 2d 164 . ) It is also reflected in many
of this court ' s decisions upholding legislative delegations of
authority that are circumscribed in only the most general of terms
( see, e . g . , Matter of Levine v Whalen, supra, at 516-517
[ "protection and promotion of the health of the inhabitants of the
State"; "fit and adequate" facilities] ; Matter of Sullivan County
Harness Racing Assn. v Glasser, 30 N . Y. 2d 269, 277 [ "public
interest, convenience or necessity" ; "best interests of racing
generally"] ; Martin v State Liq. Auth. , 15 N. Y. 2d 707 [ public
convenience and advantage"] ) . Indeed, the precise provision that
is at issue in this case - Public Health Law § 225 Pub. Health (5)
(a) - has been upheld against a constitutional challenge based
upon the "nondelegation" doctrine (Chiropractic Assn. v Hilleboe,
12 N.Y. 2d 109, 119-120) .
This does not mean, however, that the regulations at issue here
should be deemed valid without further analysis . To the contrary,
the courts have previously struck down administrative actions
undertaken under otherwise permissible enabling legislation where
the challenged action could not have been deemed within that
legislation without giving rise to a constitutional separation of
powers problem (see, e . g . , Industrial Union Dept . v American
Petroleum Inst : , 448 U. S . 607, 645-646; National Cable Tel. Assn.
v United States, 415 U. S . 336, 341-342; Moore v Board of Regents,
44 N. Y. 2d 593, 602 ; Matter of Natilson v Hodson, 264 App. Div.
384, affd 289 N. Y . 842; cf. , Kent v Dulles, 357 U. S . 116; see
also, Matter of Consolidated Edison Co. v Public Serv. Commn. , 47
N.Y. 2d 94, 102) .
A number of coalescing circumstances that are present in this case
persuade us that the difficult-to-define line between
administrative rule-making and legislative policy-making has been
transgressed. While none of these circumstances, standing alone,
is sufficient to warrant the conclusion that the PHC has usurped
the Legislature ' s prerogative, all of these circumstances, when
viewed in combination, paint a portrait of an agency that has
improperly assumed for itself "[ t] he openended discretion to
choose ends" (Tribe, op. cit . , at 285) , which characterizes the
20
elected Legislature ' s role in our system of government.
First, while generally acting to further the laudable goal of
protecting nonsmokers from the harmful effects of "passive
smoking, " the PHC has, in reality, constructed a regulatory scheme
laden with exceptions based solely upon economic and social
concerns . The exemptions the PHC has carved out for bars,
convention centers, small restaurants, and the like, as well as
the provision it has made for "waivers" based on financial
hardship, have no foundation in considerations of public health.
Rather, they demonstrate the agency' s own effort to weigh the goal
of promoting health against its social cost and to reach a
suitable compromise. Indeed, in its "declaration of findings and
intent, " the PHC itself asserted: "[ R] egulations addressing [ this]
hazard will cause certain economic dislocations and governmental
intrusions which must be justified by the nature and extent of the
public health hazard. A balance must be struck between
safeguarding citizens from involuntary exposure to secondhand
smoke on the one hand, and minimizing governmental intrusion into
the affairs of its citizens on the other " ( 1
NYCRR 25 . 1 [ g] ) .
Striking the proper balance among health concerns , cost and
privacy interests, however, is a uniquely legislative function.
While it is true that many regulatory decisions involve weighing
economic and social concerns against the specific values that the
regulatory agency is mandated to promote, the agency in this case
has not been authorized to structure its decision making in a
"cost-benefit" model (cf. , American Textile Mfrs . Inst . v Donovan,
452 U . S . 490, 543-548 [ Rehnquist, J. , dissenting] ) and, in fact,
has not been given any legislative guidelines at all for
determining how the competing concerns of public health and
economic cost are to be weighed. Thus, to the extent that the
agency has built a regulatory scheme on its own conclusions about
the appropriate balance of trade-offs between health and cost to
particular industries in the private sector, it was "acting solely
on [ its] own ideas of sound public policy" and was therefore
operating outside of its proper sphere of authority (Matter of
Picone v Commissioner of Licenses, 241 N.Y. 157, 162; see, Packer
Coll . Inst . v University of State of N . Y . , 298 N. Y. 184 , 191) .
This conclusion is particularly compelling here, where the focus
is on administratively created exemptions rather than on rules
that promote the legislatively expressed goals, since exemptions
ordinarily run counter to such goals and, consequently, cannot be
justified as simple implementations of legislative values (see,
21
a �
Matter of Nicholas v Kahn, 47 N.Y.2d 24; see also, People v Klinck
Packing Co . , 214 N . Y . 121 , 138-139) . In this regard, the
regulations at issue here are fundamentally different from those
challenged in Chiropractic Assn. v Hilleboe (supra, at 114-118 ) ,
where the specific limits on the use of X-ray and fluoroscopic
equipment were all promulgated in direct furtherance of the
health-related goal of avoiding unnecessary exposure to harmful
radiation.
The second, and related, consideration is that in adopting the
antismoking regulations challenged here the PHC did not merely
fill in the details of broad legislation describing the over-all
policies to be implemented. Instead, the PHC wrote on a clean
slate, creating its own comprehensive set of rules without benefit
of legislative guidance . Viewed in that light, the agency ' s
actions were a far cry from the "interstitial" rule making that
typifies administrative regulatory activity ( see, Matter of
Nicholas v Kahn, supra, at 31; Packer Coll . Inst . v University of
State of N.Y. , supra, at 190; see also, Tribe, op. cit . , at 285) .
A third indicator that the PHC exceeded the scope of the authority
properly delegated to it by the Legislature is the fact that the
agency acted in an area in which the Legislature had repeatedly
tried - and failed - to reach agreement in the face of substantial
public debate and vigorous lobbying by a variety of interested
factions. While we have often been reluctant to ascribe persuasive
significance to legislative inaction (see, e . g. , Brooklyn Union
Gas Co. v State Human Rights Appeal Bd. , 41 N.Y. 2d 84, 89-90; cf. ,
41 Kew Gardens Rd. Assocs . v Tyburski, 70 N . Y. 2d 325, 335; but
see, Matter of' Knight-Ridder Broadcasting v Greenberg, 70 N.Y. 2d
151; Matter of Bliss v Bliss, 66 N. Y. 2d 382, 389) , our usual
hesitancy in this area has no place here. Unlike the cases in
which we have been asked to consider the Legislature ' s failure to
act as some indirect proof of its actual intentions (see, e. g. ,
Clark v Cuomo, supra, at 190-191) , in this case it is appropriate
for us to consider the significance of legislative inaction as
evidence that the Legislature has so far been unable to reach
agreement on the goals and methods that should govern in resolving
a society-wide health problem. Here, the repeated failures by the
Legislature to arrive at such an agreement do not automatically
entitle an administrative agency to take it upon itself to fill
the vacuum and impose a solution of its own. Manifestly, it is the
province of the people ' s elected representatives, rather than
appointed administrators, to resolve difficult social problems by
making choices among competing ends .
22
Finally, although indoor smoking is unquestionably a health issue,
no special expertise or technical competence in the field of
health was involved in the development of the antismoking
regulations challenged here. Faced with mounting evidence about
the hazards to bystanders of indoor smoking, the PHC drafted a
simple code describing the locales in which smoking would be
prohibited and providing exemptions for various special interest
groups . The antismoking regulations at issue here are thus
distinguishable from those at issue in Chiropractic Assn . v
Hilleboe (supra, at 120) , in which we stressed that the PHC ' s
technical competence was necessary to flesh out details of the
broadly stated legislative policies embodied in the Public Health
Law.
In summary, we conclude that while Public Health Law § 225 Pub.
Health (5) (a) is a valid delegation of regulatory authority, it
cannot be construed to encompass the policy-making activity at
issue here without running afoul of the constitutional separation
of powers doctrine. Further, the "separability" provision of the
agency' s rules (10 NYCRR 25 . 7) cannot be used to save those rules
from the conclusion that, taken as a whole, they are invalid. The
PHC ' s own "Declaration of findings and intent" makes clear that
the agency considered the regulatory scheme it adopted to be an
integrated code in which the need to protect citizens from
"involuntary exposure to secondhand smoke" was delicately balanced
against the goal of minimizing "economic dislocations and
governmental intrusions" ( 10 NYCRR 25 . 1 [ g] ) . It would be
pragmatically impossible, as well as jurisprudentially unsound,
for us to attempt to identify and excise particular provisions
while leaving the remainder of the PHC' s antismoking code intact,
since the product of such an effort would be a regulatory scheme
that neither the Legislature nor the PHC intended.
Id. , at 9-14 (footnotes omitted, emphasis added) .
Several considerations lead me to believe that the holding in
Boreali v. Axelrod is applicable to the proposed regulation:
Item: In both instances, the regulations supposedly derive from
exceedingly brief and broad legislative grants of authority to
regulate in the name of ` the public health." (Compare and contrast
the much more extensive and explicit statutory grant under which
23
the regulations were issued and upheld in the Maryland case of
Fogle v. H & G Restaurant. )
Item: Massachusetts, like New York, has explicitly adopted in its
Constitution the separation of powers doctrine and the related
doctrine of non-delegability of legislative power to
administrative agencies . '
Item: In both instances, the proposed regulations make certain
exemptions from what otherwise purports to be a comprehensive ban
on smoking, thereby demonstrating that balancing of interests
which is the hallmark of the legislative function.
Item: In both instances, the proposed regulations "write on a
clean slate" without any prior legislative guidance.
Item: In both instances, the agencies purport to act to fill a
void left by legislative inaction.
Item: In both instances, no special expertise or technical
competence in the field of health was involved in the development
of the antismoking regulations.
Finally, I obsdrve that, in response to the decision in Boreali v.
Axelrod, the New York State Legislature enacted a comprehensive
ban on smoking in public places similar to the regulation
previously issued by the public health council . This statute
survived a challenge in Fagan v. Axelrod, 146 Misc. 2d 286, 550
N. Y. S . 2d 552 (1990) , where the Court declared, " (t) hus has Boreali
. . . been revisited, and that which could not be accomplished by
administrative rule has now legitimately been accomplished by
legislative fiat" ; id. , at 301 .
See e.g. 38 Massachusetts Practice, Cella, Administrative Law and Practice,
chapter 3, sections 91 through 117 and the authorities cited therein.
24
Summary and Conclusion
1 . No provision of the Massachusetts General Laws purports to
empower local boards of health to enact smoking bans of the sort
presently under consideration.
2 . The sole apparent statutory grant under which the Board
proposes to issue the smoking ban is G.L. c. 111, sec. 31, which
simply empowers the Board to "make reasonable health regulations."
3 . Massachusetts precedent appears to construe G.L. c. 111, sec.
31 as authorizing local boards to regulate but not to prohibit.
4 . No support has been found in the Massachusetts appellate
decisions for the proposition that municipal boards of health may
ban the performance of a widely-accepted, widely-practiced,
admittedly legal activity upon and inside private property.
5 . Most of the smoking bans which have survived Court challenges
have been been enacted by state or municipal legislatures, not
unelected administrative agencies.
6 . Most of the administratively-imposed smoking bans which have
survived Court challenges have been imposed in specialized
environments, such as prisons, schools, etc . , and have been
justified by considerations peculiar to those environments.
7 . No decided appellate decision has been located which sustained
a comprehensive smoking ban imposed by a municipal board of health
without prior statutory authorization.
The foregoing considerations lead me to conclude that the Salem
Board of Health does not have the authority or jurisdiction to
promulgate the proposed regulation
25
I hope that the foregoing has been of assistance . If you have any
questions or concerns, please feel free to contact me. Thank you.
26