Voters in Colebrook approved a warrant article in 2002 establishing “Environmental Tobacco Smoke Regulations for Restaurants.” The regulations prohibited smoking in any restaurant in town except those with segregated smoking areas and defined the standards for segregated smoking areas. Following the town meeting vote, the town’s board of health adopted the regulations as a health ordinance pursuant to RSA 147:1, I.
A local restaurant sought a declaratory judgment in superior court that the town ordinance was preempted by the state Indoor Smoking Act (RSA 155:64-77). The superior court upheld the town ordinance and the restaurant appealed that decision to the New Hampshire Supreme Court. The Court reversed, holding that the Indoor Smoking Act preempts local regulation.
The Court cited previous preemption cases for the well-settled rule that “towns cannot regulate a field that has been preempted by the state,” and that “[m]unicipal legislation is preempted if it expressly contradicts state law or if it runs counter to the legislative intent underlying a statutory scheme.”
The Court analyzed the town’s regulation as well as the state law, and held that the state Indoor Smoking Act constitutes a “comprehensive and detailed scheme that regulates smoking in restaurants.” That finding did not end the Court’s inquiry because “a comprehensive scheme could nonetheless authorize additional municipal regulation.” The Court cited the state Groundwater Protection Act (RSA Chapter 485-C) and the state’s modular building standards (RSA Chapter 205-C) as examples of comprehensive state regulation that permits additional municipal regulation.
The town argued that RSA 155:77 allows additional municipal regulation, relying on the language of the statute that says the Indoor Smoking Act should not be construed to permit smoking “where smoking is prohibited by any other provision of law or rule relative to fire protection, safety and sanitation.”
The Court agreed that RSA 155:77 permits additional municipal regulation, but “only with respect to fire protection, safety and sanitation, not with respect to public health.” Citing a similar New Jersey case, the Court said the state law sought to balance the rights of smokers and nonsmokers and that balance would be thwarted by additional municipal regulation. “We regard it as highly improbable that the legislature, after establishing detailed guidelines and having considered and balanced multiple interests, intended to leave the ultimate public health regulation of indoor restaurant smoking to the vagaries of local regulation.”
The town argued that RSA 147:1 gives towns broad authority to enact regulations relating to public health. But the Court said such a broad interpretation of RSA 147:1, given the intent of the legislature to comprehensively regulate smoking in restaurants through the Indoor Smoking Act, would “be a total abdication and delegation of legislative authority to towns, without any guidelines, supervision or legislative review whatsoever with respect to protecting the public health.” Such a broad interpretation of RSA 147:1, the Court added, would “potentially conflict with the New Hampshire Constitution, which grants municipalities only limited legislative authority.”
The Court said that, “whatever power towns may have to regulate to protect the public health under RSA 147:1, I, is subordinate to the state law governing indoor smoking in restaurants.”