LETTERS + EMAILS - PROPOSED SMOKING BAN 4 b
CITY OF SALEM BOARD OF HEALTH
Salem, Massachusetts 01970-3928
JOANNE SCOTT,MPH,RS,CHO NINE NORTH STREET
HEALTH AGENT Tel:(978)741-1800
December 8, 1999 Fax:(978)740-97U5
William J. Lundregan
City Solicitor
81 Washington Street
Salem, MA 01970
Dear Attorney Lundregan:
In response to your letter and our telephone conversation regarding the Board of
Health's jurisdiction in promulgating a regulation concerned with tobacco use in
restaurants, I am enclosing several documents for your review:
• The proposed Board of Health regulation under consideration.
• The MAHB Legal Handbook for Boards of Health, Chapter III, "General
Authority to Regulate."
• Massachusetts Practice: Municipal Law, "Health Regulations, "Chapter
19, section 742.
• Massachusetts General Law, Chapter 111, section 31
These citations include many examples of case law which may be helpful to you.
The Board of Health is unusual in that it has quasi-legislative, executive, and
even judicial powers.
.In deference to your request, the Board of Health Chairman has agreed to
postpone final deliberation regarding the proposed regulation until the January
11, 2000 meeting.
Kindly contact me if you require any additional information or assistance in
regard to this matter
Sincerely yours,
�cJe—cf
ioanne Scott
Health Agent
cc: Mayor Stanley J. Usovicz, Jr.
I annorrl AAiln %AmL-; Qno,A -f l Jool+h !`L irm�r
DEC 3 - 1999
CITY OF SAi E
HEALTH DEPT.
CITY OF SALEM - MASSACHUSETTS
WILLIAM J.WNDREGAN Legal Department JOHN D.KEENAN
City Solicitor 93 Washington Street Assistant City Solicitor
81 Washington Street Salem, Massachusetts 01970 60 Washington Street
Tel:978-741-3888 Tel:978-741-4453
Fax:978-741-8110 Fax:978-740-0072
December 2, 1999
Ms . Joanne Scott
Health Agent
City of Salem
Salem City Hall
93 Washington Street
Salem, MA 01970
Dear Ms . Scott :
It has come to my attention that the Board of Health is weighing
the issue of smoking vs . nonsmoking in various establishments
within the City of Salem.
A few weeks ago, the Mayor asked me if I would review the legal
ramifications attendant to a non-smoking policy. I am in the
process of that review. I would respectfully request that the
Board of Health delay any decision on this issue until such time
as I have done an analysis and response and have had an
opportunity to discuss this issue with the Mayor and you.
If you or your Board has any questions with reference to this
matter, please do not hesitate to call me .
Thanking you in advance for your anticipated cooperation I
remain,
Very ply yours
G�
WILLI
CITY S L ITOR
WJL/amc
CC : Mayor Stanley J. Usovicz, Jr.
To: [unknown] , [105014,2760]
From: "Marc M. Boutin", INTERNET:mahbmb@erols.com
Date: 11/22/1999, 3:25 PM
Re: Re: . .another question! !
Joanne,
Good to see you again over the weekend. As you know, Boards of Health
have extensive authority over public health issues. Boards have no
authority to regulate economics. The difficulty is that the two topics
often collide. The Court in the Boston case held that a Board may create
exceptions to an ETS Regulation to buffer the economic impact of the public
health measure. The Board must, however, be careful, if the economic
considerations outweigh the public health considerations, the regulation
could be found to be invalid as has happened in a number of other
states.
In those communities which offer a variance to their prohibition on
smoking (even with an exception for an enclosed, separately ventilated
section with limited seating capacity and no minors) , very few
establishments have requested such a variance. Typically, the number of
requests for such a variance in communities that are comparable to Salem are
0-4. Most Boards are pleasantly surprised!
Marc Boutin
MAHB
-----Original Message-----
From: 105014.2760@compuserve.com <105014.2760@compuserve.com>
To: Marc Boutin <mahbmb@erols.com>
Date: Monday, November 22, 1999 1:33 PM
Subject: . .another question! !
Hi Marc:
Thanks for a great seminar once again.
As you know, my Board will be deliberating the proposed smoking regulation
at its next meeting. It may or may not vote depending on the discussion.
I am in the process of delineating the Board's options regarding the reg.
Dot Flaherty had mentioned that there was a court case because the Board in
question(maybe Boston) had considered economic factors during its
deliberation of a similar reg. Because economics are not in the
Board'sjurisdiction, there may be a problem with the resultant reg. Is
this correct? If- there is a hazard here I would like to make it clear to
my Board and also to be careful in my summary of options for them. Let me
know.
Thanksgiving is upon us and I am thankful for people like you who lend
solid support and advice. Have a good holiday. Joanne Scott
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