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Smoking challenge may have big reach
Lawsuit pits opposing statutes
Monday, May 5, 2003
Jenn Abelson Boston Globe
FRAMINGHAM - A coalition of restaurants and bars will go to court today to challenge a smoking ban and officials say the lawsuit, if successful, could have statewide implications, undermining regulations ranging from smoking to wetlands to septic systems.

Unlike previous legal fights over the merits of smoking prohibitions, this lawsuit is the first to focus on two contradictory local laws.  Officials said that if the suit prevails, it could also prompt additional battles in municipalities where more than one governing body passes an ordinance regulating the same practice.

The Framingham Restaurant Association says in its suit that the Board of Health usurped the authority of Town Meeting when the board passed a smoking ban, which was to be implemented today along with Boston's.  A Town Meeting-approved ordinance was already on the books that limited smoking in bars and restaurants to restricted areas.

The Board of Health last year asked Town Meeting to rescind the earlier local ordinance so it wouldn't conflict with the board's new smoking ban, but voters rejected that proposal, setting the stage for the court fight.

"The Board of Health may not subsequently decide to overrule democratic government simply because it disagrees with the Legislature," says the association's lawsuit, which was filed Wednesday in Middlesex Superior Court, days before the ban was to take effect.

Framingham officials decided last week to postpone enforcement of the smoking ban until after today's hearing before Judge Bonnie MacLeod on the association's request for a preliminary injunction, which would prevent implementation until the case is decided.

If MacLeod rules against the Board of Health's attempt to impose the smoking ban, the ripple effect could undermine other controversial regulations, said Cheryl Sbarra, senior staff attorney for the Massachusetts Association of Health Boards, a not-for-profit trade association.

Ultimately, she said, allowing a government body to overrule a board of health could result in compromising the public good.

Christopher Petrini, the town counsel, said he believes the Board of Health has the prevailing authority to regulate smoking, even though the board and Town Meeting derive their power from the Legislature.  He offered that opinion at Town Meeting a year ago when the vote was taken to leave the earlier ordinance in place.

"Recent Supreme Judicial Court cases accord a lot of deference to the board of health and the areas they regulate," Petrini said.  "I believe the Board of Health has the authority to enforce this regulation."

Over the past several years, requests for injunctions to halt smoking restrictions in Boston, Brookline, Marblehead, and Northampton were rejected, and the Supreme Judicial Court ruled in 2000 that Barnstable's Board of Health had the authority to ban smoking in restaurants and bars.

This case, however, represents the first time the dispute has focused on two local laws about smoking that contradict each other, said D. J. Wilson, tobacco control director for the Massachusetts Municipal Association.

Wilson said he typically advises communities to implement smoking restrictions through the same forum - whether it's town meeting, city council, or a board of health - so that this type of situation cannot arise.

In Framingham, the Board of Health secured approval from Town Meeting in 1999 for a bylaw to allow smoking in restaurants only in enclosed areas, the first in a series of restrictions intended by the board on smoking.

Last year, the board approved a regulation that called for a ban on smoking in all restaurants and bars, but did not seek support through Town Meeting.  Instead, the Board of Health asked Town Meeting to repeal the 1999 bylaw as a "housekeeping" measure.

Town Meeting denied the request, expressing concern for businesses that had spent significant amounts of money to comply with the earlier ordinance.

"Town Meeting spoke, and the Board of Health just turned around and did its own thing," said Marc Noe, owner of Mugs Away Pub and a plaintiff in the lawsuit.  "We're trying to protect ourselves."

Noe said that while a statewide smoking ban is inevitable, it's unfair that Framingham was unwilling to compromise with the restaurants and bars.  Business owners suggested accommodations such as waiting for surrounding communities to enact bans, or making exceptions for establishments that completed costly renovations to make separate sections for smokers and nonsmokers to comply with the earlier regulation.

Framingham officials said they are frustrated and disappointed at the timing of this lawsuit, as well as the motivation behind it.

"I'm annoyed that people would consider economic and monetary factors over the health of their employees and the public," said Robert Cooper, Framingham's health director.

Jenn Abelson can be reached at abelson@globe.com.

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