Lithuanian Naturalization v. Bd. of Health

• Decision Date: 22 March 2006
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: AMERICAN LITHUANIAN NATURALIZATION CLUB, ATHOL, MASS., INC., & others<SMALL><SUP>1</SUP></SMALL> v. BOARD OF HEALTH OF ATHOL & another.<SMALL><SUP>2</SUP></SMALL>

Page 231

844 N.E.2d 231

446 Mass. 310

AMERICAN LITHUANIAN NATURALIZATION CLUB, ATHOL, MASS., INC., & others¹ v. BOARD OF HEALTH OF ATHOL & another.²

Supreme Judicial Court of Massachusetts, Worcester.

Argued November 9, 2005.

Decided March 22, 2006.

COPYRIGHT MATERIAL OMITTED

Christopher N. Banthin (Mark A. Goldstein, Gardner, with him) for the defendants.

Michael J. Tremblay, Marlborough, for the plaintiffs.

John M. Townsend, Boston, for Boston Public Health Commission, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

We consider in this case whether a town board of health has the authority to promulgate a regulation that prohibits smoking at all times in the premises of membership associations, sometimes referred to as private clubs.³ We conclude that it does.⁴

The plaintiffs, three membership associations located in the town of Athol (town), challenge a regulation promulgated in November, 2004, by the board of health of Athol (board) prohibiting smoking in the enclosed areas of the premises of Athol membership associations.⁵ See Appendix. The board acted pursuant to G.L. c. 111, § 31,⁶ and G.L. c. 270, § 22 (j), as appearing in St.2004, c. 137, § 2.⁷ In a verified complaint, the plaintiffs sought a judgment declaring that the board had exceeded its authority. The plaintiffs also alleged that a conflict of interest existed for one member of the board who voted in favor of the town regulation, rendering the vote null and void. They further alleged various constitutional and statutory claims: the regulation was vague and overbroad, infringed their members' right to privacy in violation of G.L. c. 214, § 1B, unlawfully restricted their freedom of assembly, violated the free exercise of their members' religious beliefs, constituted a governmental taking of property without adequate compensation or due process of law, and constituted a violation of the Civil Rights Act, G.L. c. 12, § 11I.

The plaintiffs moved for a preliminary injunction on the basis of all these claims except the claim under the Civil Rights Act. They additionally argued that G.L. c. 270, § 22, sometimes referred to as the smoke-free workplace law, preempts local restrictions of smoking in the premises of membership associations. At the suggestion of the judge in the Superior Court, who noted that there appeared to be no facts in dispute, the parties submitted the matter for final resolution on a statement of agreed facts.⁸

The judge concluded that the town regulation was "unreasonable, arbitrary and capricious" as applied to "private clubs," exceeded the board's authority under G.L. c. 111, § 31, and was therefore "void and unenforceable." Final judgment entered to that effect, and the judge permanently enjoined the defendants from enforcing the regulation. He stated that he did not need to reach the remaining claims of the plaintiffs.

The defendants appealed, and we granted their application for direct appellate review. We conclude that the board had the authority to promulgate the regulation pursuant to G.L. c. 111, § 31, and that its authority to do so is not preempted by G.L. c. 270, § 22, as rewritten in 2004. We further conclude that the regulation is not vague or overbroad, does not violate the rights of the plaintiffs or their members to privacy under G.L. c. 214, § 1B, to assembly under the United States Constitution, or to the free exercise of religion under the United States Constitution or the Massachusetts Constitution. In addition, the plaintiffs have not established a violation of the Civil Rights Act, G.L. c. 12, § 11I. We remand the claim of deprivation of property without due process or adequate compensation because the town argues that there are insufficient uncontested facts in the record for us to resolve it.

1. Background. In 2004, the Legislature rewrote the then-existing antismoking legislation, G.L. c. 270, § 22, substantially expanding the reach of that statute to "protect the health of the employees of the commonwealth." St.2004, c. 137, preamble. Compare G.L. c. 270, § 22, as appearing in St.2004, c. 137, § 2, with G.L. c. 270, § 22, as amended through St.1997, c. 85. The 2004 smoke-free workplace law mandated a "smoke free environment for all employees working in an enclosed workplace." G.L. c. 270, § 22(b)(1). To that end, the 2004 statute "prohibited" smoking in all workplaces, private⁹ and public.¹⁰ The 2004 legislation further provided that smoking "may be permitted" in nine specifically enumerated "places and circumstances," G.L. c. 270, § 22(c), one of which is "premises occupied by a membership association"¹¹ if the premises is owned or under lease for a term of not less than ninety consecutive days by the association, G.L. c. 270, § 22(c)(2)(i) (emphasis added). The statute also provided that smoking is not permitted in "an enclosed indoor space" of a membership association during the time the space is "open to the public," "occupied by a non-member who is not an invited guest of a member or an employee of the association," or "rented from the association" for compensation. G.L. c. 270, § 22(c)(2)(i)(A)-(C).

Of further relevance to this litigation is the provision of the 2004 legislation concerning preemption. Specifically, G.L. c. 270, § 22(j), provides:

"Nothing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited by law including, without limitation: any other law or ordinance or by-law or any fire, health or safety regulation. Nothing in this section shall preempt further limitation of smoking by the commonwealth or any department, agency or political subdivision of the commonwealth."

In the wake of the 2004 legislation, the board promulgated a local antismoking regulation to "protect and improve the public health and welfare by prohibiting smoking in membership associations."¹² The town regulation recites that "conclusive evidence" exists that tobacco smoke "causes cancer, respiratory and cardiac diseases" and other diseases and harmful health effects enumerated in the regulation, notes the harmful effects of smoking on smokers and nonsmokers alike, states that second-hand smoke has been classified as a "known human carcinogen" by the United States Environmental Protection Agency, among others, and recognizes "the right of those who wish to breathe smoke free air." The town regulation prohibits smoking at all times "in the enclosed areas of membership associations, also known as private clubs," and declares it "unlawful" for any person having control of such premises to permit a violation of the regulation. Violation of the regulation "may" result in either criminal or noncriminal consequences.¹³

Subsequent to the adoption of the town regulation, the Department of Public Health (department) promulgated State-wide antismoking regulations, 105 Code Mass. Regs. §§ 661.000 (2005), to provide standards for the implementation of G.L. c. 270, § 22. The department's regulations concern, among other things, smoking in membership associations. See 105 Code Mass. Regs. §§ 661.003 (adopting definition of membership associations utilized in G.L. c. 270, § 22), 661.100.¹⁴ The department's regulations contain an antipreemption provision directed to the local regulation of smoking. See 105 Code Mass. Regs. § 661.001 ("Nothing in [these regulations] shall be interpreted as limiting or preempting further restrictions on smoking by any local by-law, ordinance or regulation").

Shortly after the board promulgated the town regulation, the plaintiffs, the American Lithuanian Naturalization Club, Athol, Mass., Inc. (Lithuanian Club); the Franco-American Naturalization Club, Inc. (Franco-American Club); and the American Legion Post # 102, Inc. (American Legion), brought this action challenging the validity of the town regulation. The plaintiffs asserted that they are "private clubs" not generally open to the public and that the board had no authority to prohibit smoking in their premises when the public is excluded and only members are present. We briefly describe the plaintiffs, their organizational structures, and facilities.

Each plaintiff is organized as a charitable corporation under G.L. c. 180,¹⁵ and owns its building. Each has been licensed to serve alcoholic beverages. Only adults are permitted to become members; guests are permitted in each club at any time if accompanied by a member. Members perform all labor at the clubs, including bartending.¹⁶ Although the clubs are "private," all three "regularly" conduct fund raising activities for local charities, consistent with their charters and their mission statements.¹⁷ The premises of all three are also open to the public during "sanctioned" social events. At such times each club prohibits all smoking in all parts of its premises. At all other times the doors to the buildings are locked and signs posted to indicate that only members may enter.

2. The authority of the board. We consider first the town's authority to promulgate the regulation pursuant to G.L. c. 111, § 31,¹⁸ before addressing the plaintiffs' claim that any local regulation of smoking in the premises of membership associations is preempted by the 2004 smoke-free workplace law, G.L. c. 270, § 22.

The judge concluded that the board did not have the authority to restrict smoking in "private membership clubs" under G.L. c. 111, § 31, reasoning that membership associations "do not directly affect the public, except in very limited circumstances." He emphasized that the members of the clubs join voluntarily and choose to smoke or join the associations knowing that smoking is permitted, and that no smoking is permitted when the clubs are open to the public. The judge's reading of the statute is unduly restrictive.

We have long recognized that the rule making authority of local boards of health is broad. See Independence Park, Inc. v. Board of Health of Barnstable, 403...