JTR Colebrook, Inc. v. Town of Colebrook

829 A.2d 1089, 149 N.H. 767, 2003 N.H. LEXIS 121
CourtSupreme Court of New Hampshire
DecidedAugust 19, 2003
DocketNo. 2003-085
StatusPublished
Cited by11 cases

This text of 829 A.2d 1089 (JTR Colebrook, Inc. v. Town of Colebrook) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JTR Colebrook, Inc. v. Town of Colebrook, 829 A.2d 1089, 149 N.H. 767, 2003 N.H. LEXIS 121 (N.H. 2003).

Opinion

Broderick, J.

The petitioner, JTR Colebrook, Inc. d/b/a The Colebrook House (the Colebrook House), a restaurant, appeals from the order of the Superior Court (Perkins, J.) upholding the no-smoking ordinance of the respondent, the Town of Colebrook (town). We reverse.

The relevant facts follow. In the spring of 2002, the town passed the “Environmental Tobacco Smoke Regulations for Restaurants” ordinance, the stated purpose of which is to “protect and improve the public health and welfare by prohibiting smoking in restaurants” in recognition of “the right of those who wish to breath [sic] smoke-free air.” After the ordinance was enacted, the town’s board of health adopted it as a health regulation pursuant to RSA 147:1,1 (1996).

The ordinance prohibits smoking in “any restaurant.” It contains an exception for restaurant cocktail lounges that are “effectively segregated from any non-smoking area.” To be “effectively segregated,” a smoking area and a non-smoking area must be separated by an enclosed place. [769]*769There must also be a “continuous, physical baxrier such as a wall... (that spans from the floor to the ceiling) that separates the no-smoking from a smoking-permitted area.” In addition, for cocktail lounges, “up to 30 cubic feet per minute of outdoor air per occupant” must be provided for 100 people per 1,000 square feet and more air must be exhausted from the room than is supplied to it.

In August 2002, the Colebrook House sought a declaration that the State Indoor Smoking Act preempted the ordinance. See RSA 155:64-:77 (2002). The Act became effective in January 1991. Its stated purpose “is to protect the health of the public by regulating smoking in enclosed workplaces and enclosed places accessible to the public, regardless of whether publicly or privately owned, and in enclosed publicly owned buildings and offices.” RSA 155:64. “[Notwithstanding any law to the contrary,” and except as provided in RSA 155:67, the Act prohibits smoking in “[a]ll enclosed places of public access and publicly owned buildings and offices, including workplaces, except in effectively segregated smoking-permitted areas.” RSA 155:66. “If smoking cannot be effectively segregated in any such enclosed place,” then it is “totally prohibited.” Id. The Act defines an “enclosed place” as “a structurally enclosed location, or portion of such location, enclosed by a floor, ceiling, and 3 or 4 solid walls, partitions, or windows, exclusive of doors or passageways.” RSA 155:65, VI.

“Effectively segregated” means that the following conditions are met: (1) procedures for accurately and fairly determining smoking preference have been followed; (2) the size and location of no-smoking and smoking-permitted areas are designed so that smoke does not “harm or unreasonably intrude” into the no-smoking area; (3) a contiguous portion of the enclosed public place measures a minimum of 200 square feet; (4) there is either a continuous, physical barrier of at least fifty-six inches in height or a space of at least four feet in width to separate the no-smoking and smoking areas; and (5) in buildings with existing ventilation systems, designated smoking areas are proximate to exhaust vents. RSA 155:65, V.

The Act exempts from its provisions restaurants seating fewer than fifty people and cocktail lounges, among other places. RSA 155:67, VIII-IX. The Act requires that those in charge of enclosed places in which smoking is prohibited and of designated smoking-perxnitted areas develop written policies and procedures relative to complying with the Act. RSA 155:68, :69.

The Act authorizes the Commissioner of the New Hampshire Department of Health and Human Services to adopt rules relating to, among other things, criteria for smoking-permitted areas that effectively segregate such areas, and procedures for resolving complaints regarding [770]*770the failure to comply with the Act. RSA 155:71. Individuals who smoke in designated no-smoking areas are guilty of a violation-level offense for which they may be fined no less than $100. RSA 155:76.

The sole issue for our review is whether the State Indoor Smoking Act preempts the town ordinance. “It is well settled that towns cannot regulate a field that has been preempted by the State.” Town of Hooksett v. Baines, 148 N.H. 625, 627 (2002). Municipal legislation is preempted if it expressly contradicts State law or if it runs counter to the legislative intent underlying a statutory scheme. Casico v. City of Manchester, 142 N.H. 312, 315 (1997). Generally, a detailed and comprehensive State statutory scheme governing a particular field demonstrates legislative intent to preempt that field by placing exclusive control in the State’s hands. Id. “In such circumstances, municipal legislation dealing with that field ‘runs counter’ to the State statutory scheme.” Id.

The State Indoor Smoking Act contains detailed provisions governing the circumstances under which smoking may be allowed in restaurants, defining, for instance, in minute detail, the term “effectively segregated” down to the square footage of permissible smoking areas. See RSA 155:65, :69. It provides for State rulemaking and enforcement, including detailed provisions governing complaints and investigations, waivers, and penalties for non-compliance. See RSA 155:71-:76.

We hold that the State Indoor Smoking Act constitutes a comprehensive and detailed scheme that regulates smoking in restaurants. A “conclusion that the State regulatory scheme is comprehensive and detailed does not end the preemption inquiry, however, because a comprehensive scheme could nonetheless authorize additional municipal regulation.” Casico, 142 N.H. at 316. The town argues that RSA 155:77 allows additional municipal regulation of smoking in restaurants to protect the public health. We disagree.

“We interpret legislative intent from the statute as written, and therefore, we will not consider what the legislature might have said or add words that the legislature did not include.” Baines, 148 N.H. at 630 (quotation omitted). When construing a statute’s meaning, we first examine the language found in the statute. McKenzie v. City of Berlin, 145 N.H. 467, 470 (2000). “Although we give undefined language its plain and ordinary meaning, we must keep in mind the intent of the legislation, which is determined by examining the construction of the statute as a whole, and not simply by examining isolated words and phrases found therein.” Cross v. Brown, 148 N.H. 485, 486 (2002). We must construe this statutory provision in a manner that is “consistent with the spirit and [771]*771objectives of the legislation as a whole.” Stabler Corp. v. Town of Hooksett, 122 N.H. 1091,1102 (1982) (quotation omitted).

RSA 155:77 provides that: “Nothing in this subdivision shall be construed to permit smoking where smoking is prohibited by any other provision of law or rule relative to fire protection, safety and sanitation.” We interpret this provision according to its plain meaning and hold that it permits additional municipal regulation of smoking only with respect to fire protection, safety and sanitation, not with respect to public health. See LDM, Inc. v. Princeton Reg. Health, 764 A.2d 507, 518 (N.J. Super. Ct. Law Div.

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Bluebook (online)
829 A.2d 1089, 149 N.H. 767, 2003 N.H. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jtr-colebrook-inc-v-town-of-colebrook-nh-2003.