Posted on 11/12/2002 1:40:59 PM PST by Max McGarrity
A Coos County Superior Court judge is being asked to decide whether a town ordinance in Colebrook which bans smoking in restaurants is legal.
The Colebrook House restaurant on Main Street is challenging the ordinance, which went into effect June 12. It essentially bans smoking in restaurants within the town limits but allows for smoking in bar areas provided they are in separate rooms. The case is being watched in Keene where that city recently passed a similar ban.
At the annual Colebrook Town Meeting in March, voters passed an ordinance 71-45 to ban smoking. After seeking legal opinions and hearing from restaurant owners who said their businesses would suffer if people can’t smoke, selectmen decided to hold another vote.
The vote in May to uphold the ban was 262 to 106.
“The will of the people should prevail here,” said Town Manager Donna Caron yesterday, following a final hearing in the case Thursday at Coos County Superior Court in Lancaster.
But Teresa Olszower, owner of the Colebrook House, wonders where the town gets the authority, noting it issues no licenses or permits for her establishment and state government does not make smoking illegal.
“If the town can put together the people and go over the law of the state and put a new law in place, it is no good. Nobody is forced to go to the restaurant. It should be my decision, not the town’s,” she said. “I am just thinking the government regulations interfere too much with private people’s lives.”
Olszower has owned the Colebrook House for eight years. It is among eight or nine restaurants in the town that are affected by the ban.
Manchester attorney James Shirley argued that the restaurant owner’s rights were being trampled by the smoking ban, while Timothy Bates of Laconia represented the town.
Coos County Superior Court Judge Harold Perkins heard each side present arguments of law for about a half an hour and then gave each side two weeks to submit refuting arguments. Upon receipt, Perkins will then rule.
The City of Keene also passed a similar measure in March but has not been challenged. An article in the Oct. 9 issue of The News and Sentinel of Colebrook reported that restaurants have seen little increase or decrease in business that they can attribute to the ban.
At the Wilderness Restaurant, longtime waitress Julie Rainville said the ban has actually made the restaurant busier because they can now seat morning business in the bar, where smoking is allowed. “Actually, if you think about it, we’re busier because we can seat more people,” she told The Sentinel.
The move to make Colebrook restaurants smoke-free was initiated by the town’s health officer of six years, Dr. Robert Soucy, who said non-smokers are apt to drive 11 miles to Bessie’s Diner in Canaan, Vt., where smoking is banned.
“We’d like Coos County to send a message to Concord — we’d like to turn this into political action,” he said. Already in Coos County, the towns of Randolph and Columbia have passed smoke-free ordinances, even though there are no restaurants in those communities.
Larry Pryor, chairman of the board of selectmen said he expected a challenge. “As time went on, one of the reassuring things about having a second vote was to get a mandate and we definitely got it,” he said. “I welcome any judge to take on the voters of Colebrook.”
No one has the authority to give a town permission to contradict or break the State laws.
If Colebrook were to enforce all the sections of it's Smoking ban, the ban cannot go into effect until the Commissioner of the New Hampshire Department of Health and Human Services (DHHS) approves the towns special restaurant permit that's sole purpose is to ban smoking. Colebrooks's town manager advised us several days after our letters were sent to Concord, that the town has no intention of issuing such permits, thus no need for Commissoner's approval. So section 9.1, (Enforcement, Public Health - Food Service Establishment Permit), will be ignored. Read whole ordinance here. http://colebrookjustice.tripod.com/proposal.html
Read our letter asking the question, "What will the Commissioner do?" written to the Chief Legal Council, Program Support Office of the DHHS. 6/2/02
Read our message asking the question, "What will the Commissioner do?" written to Executive Assistant, Commissioner NH Department of Health and Human Services 6/4/02
Read the response we received from one legal coordinator at the NH DHHS 6/3/02 along with our interpretation.
1) SCIENCE
53,000 Deaths The purpose of the smoking ban states that Environmental Tobacco Smoke (ETS) causes the death of 53,000 Americans each year. Do you know the original source for that number and can you demonstrate that it is scientifically authoritative? Do you know what the impartial and highly respected United States Congressional Research Service wrote about that source (3/23/94)?No Safe Level of exposure In your letter to the editor (Bob Soucy's 5/10/02 Colebrook Chronicle) you state "that there is no safe level of exposure to a burning tobacco product." I declare that this statement is meaningless and deliberately deceptive because there are no guaranteed safe levels of exposure to anything in the legal and medical community. Can you defend your statement?
Permissable Exposure Levels Do you know what OSHA is? Are you aware that OSHA has official charts listing Permissible Exposure Levels (PELs) for workplaces exposure to carcinogens? In a hermetically sealed room measuring 20' x 20' with a 9' ceiling, do you know how many cigarettes could be smoked simultaneously before exceeding OSHA's permissible exposure levels?
Poisons Smoking ban proponents say second hand smoke contains dangerous chemicals. For example, arsenic is on this list. The Water Supply Engineering Bureau of the NH Department of Environmental Services publishes acceptable levels for the amount of arsenic and other contaminants in drinking water. If the existence of chemicals is the justification for the smoking ban, we should require that everyone only drink distilled water. The truth is that chemicals and carcinogens are all around us. Can you prove that any of the chemicals in second hand smoke exceed safe levels of exposure?
EPA 3000 death estimate Smoking ban proponents state that "The Environmental Protection Agency estimates that 3,000 nonsmokers die of lung cancer annually-as a result of breathing someone else's cigarette smoke." This estimate was challenged in Federal Court. In July of '98 a federal judge, after interviewing a range of scientists for 4 years, called the EPA Report that had reached this conclusion an outright "fraud" and overturned (invalidated, vacated) that conclusion and the report it rode in on. This EPA estimate was also analyzed by the US Congressional Research Service which concluded that "The statistical evidence does not appear to support a conclusion that there are substantial health effects of passive smoking." "Even at the greatest exposure levels...very few or even no deaths can be attributed to ETS." Why do you smoking-ban proponents keep publishing this fraudulent estimate?
Relative Risk Do you know the name for the branch of medical science which deals with the incidence, distribution and control of disease in a population, also referred to as a methodology in which statistical associations are used to show cause-and-effect status? Do you know what percentage increase is necessary in this science, as a general rule, to indicate a cause and effect relationship? Experts recommend 300% to 1000% increases. Do you know if the reports you quote meet this criterion?
Confounders and Sample Size For any published report you smoking ban proponants site, the fair minded voters needs to know: What kind of study was it? If it was meta analysis, can you show us the researchers were unbiased? How was the data gathered and verified? If a survey was used, what were the actual questions on the survey? How big was the sample size? How was the sample selected? Is there a dose/response relationship? What confounders were considered an adjusted for? Who conducted the study? What is their personal history conducting other studies? What personal interest might they have in the outcome? Who funded the study? What is their history regarding other studies, and what is their interest in the outcome? If you can't answer these questions, we shouldn't trust the validity of any study you site!
Coos County smoking disease In your letter to the editor (Bob Soucy's 5/10/02 Colebrook Chronicle) you state "Coos County has the highest rate of smoke related disease in the state." Can you supply the voters with your source for this information? Does your source prove that smoking was the primary cause of these "smoke related" diseases, or is the primary cause undisclosed? Can you prove that short exposure to smoke in restaurants has anything to do with these diseases?
Who Study A comprehensive World Health Organization (WHO) study showed no statistically significant association between lung cancer and exposure to Environmental Tobacco Smoke (ETS) (10/7/1998) Have your read this study? In the Journal of the National Cancer Institute, where the results were published, the researchers clearly state: "An important aspect of our study in relation to previous studies is its size, which allowed us to obtain risk estimates with good statistical precision..." Why do the smoking-ban proponents ignore this study?
2) LEGALITY
Putting ordinances into effect In your letter to the editor (Bob Soucy's 5/10/02 Colebrook Chronicle) you wrote that "the smoke-free dining ordinance recently passed in Colebrook." I assert that town meeting voters do not have the authority to put into effect any proposed ordinance that wins a vote. Can you explain the difference between voting on an article "to accept" a proposed regulation, versus putting a legal ordinance into effect?3) ECONOMICSPreemption Have you read the New Hampshire Indoor Smoking Act? Can you explain the doctrine of preemption? If this smoking-ban is enacted, anyone could challenge the legality of the ordinance in Superior Court because local laws can not preemt state laws. Thus taxpayers will have to pay legal fees to defend the ordinance. If the town loses, and a restaurant can show that it has lost money, or worse yet, has gone out of business because of this ban, the taxpayers of Colebrook may have to pay the business owner damages. The Michigan Supreme court just upheld two lower court decisions disallowing a smoking ban in the City of Marquette for this exact reason (Michigan Restaurant Ass'n v City of Marquette 9643.pdf). The city of Manchester, NH lost in court when they tried to enforce an ordinance conflicting with State Laws regarding the serving of alcohol. Can you explain to the voters how you plan to legally defend this smoking ban which conflicts with state law?
Personal preference vs. minding your own business In your letter to the editor (Bob Soucy's 5/10/02 Colebrook Chronicle) you wrote, " the majority of New Hampshire residents prefer a smoke-free dining experience." Can you supply the voters with your source for this information? More importantly, can you explain what LEGAL right those people who prefer smoke-free dining have to forbid a business to server customers who enjoy NON-smoke-free dining? Can you explain to the fair-minded voters, how it is legally justified for our town to make laws based on personal preferences of any group of people who outnumber a smaller minority at a town meeting.
Right to eat without smoke In your letter to the editor (Bob Soucy's 5/10/02 Colebrook Chronicle) you wrote, "It is the right of every citizen to eat a meal without tobacco smoke." Can you site your legal source for this declared right? There IS a defined right to own property, and establish a business, which implies serving any market niche a business owner chooses. Where do you find the legal right to intervene?
Stale Bread and Stale Air At the March 12 town meeting you said we regulate serving stale bread, so we should regulate serving stale air. I declare that this statement is illogical and deliberately deceptive. Can you elaborate an explain what stale bread regulations have to do with smoking?
Public vs Private Proponents of this smoking-ban seem to imply that restricting smoking in government buildings is a first step towards banning smoking in restaurants. I assert that this correlation is illogical. Can you explain the difference between publicly owned government building and privately owned business property, and then explain why you believe policies in government buildings have anything to do with restaurants?
No Representation Would someone explain to the us how restaurant owners and employees are supposed to vote at a town meeting when they don't even know the exact time the vote will occur? If the majority of the workers at a restaurant or lodge want to vote, who's going to reimburse their losses when they have to close their business so they can attend a town meeting and wait to vote? I've been advised by the Secretary of State's Office that the moderator and participants of a town meeting have the discretionary authority to hold the polls open for an extended time after the voting has begun. If the goal of the this re-vote is to learn the sentiment of an educated legislative body, let's not set policies that discriminate against the voters on one side of the issue.
Other States: Maine, California You have stated that studies in Maine and California show increased in restaurants' revenues. I declare these statements are irrelevant to the proposed smoking ban in Colebrook. Can you elaborate on them to explain why you believe they are relevant?4) COMMON SENSE REASONABLENESSBig Tobacco You've sounded like you were disgusted with big-tobacco if they got involved in the smoking-ban debate. If people who had no tolerance for skiing, snowmobiling or hunting started coalitions to ban these activities, would you be surprised if manufacturers of these products got involved? What do tobacco companies activities have to do with the smoking ban in our restaurants?
Who's paying the proponants? The state Department of Health and Human Services is publishing and giving grants to organizations which publish one-side literature against restaurant customers who smoke. This literature quotes invalid, fraudulent, and implausible scientific reports. The state budget (HB1-A) shows nearly $5,000,000 is spent for tobacco prevention. Does that money come from our taxes? How much of that money is being spent to fight restaurant owners? Who determines this amount and is this person elected or appointed? Can you show any constituent demand for this government service?
Health officer's role Dr. Soucy, are you proposing this ban as an individual or as the health officer? If as the Health Officer, who is your employer? Has your employer directed this campaign? If as a private citizen, we know you are not a resident, so can you explain why we should give you a special podium at our town's meeting?PETITION IN SUPPORT OF RESTAURANT OWNERS RIGHTSDo you smoke a pipe? I have heard that you smoke a pipe. If you do, you are a hypocrite. How can you justify legislatively dictating that restaurants become smoke-free so you aren't exposed to smoke on someone else's property, when you expose yourself to your own smoke?
Reduce Risk You have stated that making restaurants smoke free will be taking steps towards reducing the rate of smoking related diseases. Though I maintain that this assertion is scientifically unfounded, by your logic, if reducing risk is your honest goal, by the same logic you should be trying to outlaw all activities in Colebrook that are risky; i.e. snowmobiling, skiing, swimming, operating farming equipment, listening to loud music, taking birth control pills, boating, driving etc. I maintain that adults have the sole responsibility to chose what alledgedly risky activities to participate in. Can you explain why smoke in a restaurants has been singled out in this list?
Minding your own Business Do you now, or have you ever run your own business? How many of the proponents of this smoking ban own a business? I maintain that all business owners solely chose what services to provide, what music or radio station to play, the setting of the thermostat, the lighting, and the decor based on market conditions and personal preferences. If people don't like the atmosphere or service of a business, they naturally don't patronize that business. Are there any business owners who think outsiders should legislatively dictate which potential customer-base they should gratify? If there are, would they please explain their position to the rest of us?
Restaurant Employees Am I correct in assuming that being a doctor was not your first job? If any fair minded person remembers their first job or reflects on their current job, they can list parts of the job that are displeasing. People favoring this ban have stated that employees have the right to work in a place that is smoke-free. If the preferences of the employees were the primary factor in defining working conditions, there would be no need to pay anyone. No one has the right to work any where. If no workers will tolerate the unpleasantries of a particular job for the offered pay rate, the employer will have to pay more money or change the situatioin because no one will take the job. Will you explain why potential employees or their parents should have the power to legislatively dictate a ban on smoking or, for that matter, a ban on any other unpleasant working condition?
1) Whereas the(A)anti-smoking proposed regulations accepted at town meeting by 71 to 45 vote, through 2001 Warrant Article 47, "To see if the Town will adopt an ordinace to prohibit Smoking in Restaurants.(By petition) (The Selectmen do not recommend passage of this article.)," contain language falsely claiming "53,000 deaths" due to environmental tobacco smoke that is not factual and unsupported by sound scientific research,
1a: A comprehensive World Health Organization (WHO) study showed no statistically significant association between lung cancer and exposure to Environmental Tobacco Smoke (ETS) (October 7, 1998):
http://www.jeremiahproject.com/smoke/et9803.html ((B)UK Sunday Telegraph Article published in March 8, 1998)
http://www.davehitt.com/facts/who.html ((C) easy to read explanation of WHO Study)
http://www.forces.org/evidence/who/files/synops1.htm ((D) Synopsis of WHO Study controversey)
http://193.78.190.200/2/12/1440.pdf ((E)Text of WHO Study as 11 page .pdf document. slow to download)
1b: EPA Study which classified second hand smoke as a class A carcinogen and alleged harm done by ETS has been vacated (declared null) by a United States Federal Court (July 17, 1998):
http://www.forces.org/evidence/epafraud/files/osteen.htm ((F) Judge Osteen's decision)
http://www.davehitt.com/facts/epa.html ((G) easy to read critique of EPA study)
1c: Congressional Research Service (CRS) for the United States Congress concluded that there is no proof, from the studies done, that environmental tobacco smoke (ETS) causes lung cancer (November 14, 1995):
http://www.ncpa.org/ea/eama96/eama96p.html ((H) National Center for Policy Analysis December 1996)
http://www.forces.org/evidence/files/crs11-95.htm ((I) Text of the CRS Report)
1d: The original study concluding that 53,000 Americans die each year ETS has not yet been recovered. We are waiting to receive a copy of an 1988 article published in Environmental International, by A. Wells, titled An estimate of adult mortality in the United States from passive smoking, vol. 14: p 249-265.
2) The proposed regulations for cocktail lounges specify a ventilation system. "For cocktail lounges, up to 30 cubic feet per minute of outdoor air per occupant shall be provided for 100 people per 1,000 square feet." This language can be construed to require 18 room air changes per hour for a 20wide x 50 long x 10 high lounge (J).
3) Selectmen and NH Commissioner of the department of health and human services have to approve also.
I. The health officers of towns may make...other regulations relating to the public health as in their judgment the health and safety of the people require, which shall take effect when approved by the selectmen, recorded by the town clerk, and published in some newspaper printed in the town, ...
II. The health officers of towns may make regulations relative to the...health conditions for issuing a license to restaurants ... operating within the town limits, subject to the approval of the commissioner of the department of health and human services.
http://gencourt.state.nh.us/rsa/html/X/147/147-1.htm ((K) New Hampshire Revised Statues 147:1 On Line )
http://gencourt.state.nh.us/rsa/html/III/31/31-39.htm (Powers and Duties of Town, Power to Make Bylaws 31:39)
4) Whereas restaurants in the Town of Colebrook are in harmony with settled 1990 New Hampshire State Laws clearly giving the person in charge the authority to designate smoking-permitted areas (Statutes 155.64 - 155.77), making the Colebrook anti-smoking ordinance illegal and unable to withstand legal challenge:
http://gencourt.state.nh.us/rsa/html/indexes/155.html ((L) New Hampshire Revised Statues 155:66 On Line)
4a) HB 1444 3/9/2000- AS INTRODUCED 2000 SESSION Failed
COMMITTEE: Municipal and County Government. This bill clarifies the indoor smoking act with respect to municipal ordinances. 155:78 Municipal Ordinances. Nothing in this subdivision shall be construed to restrict the power of any municipality to adopt local laws, ordinances, and regulations that are more stringent than this subdivision.
http://www.gencourt.state.nh.us/ns/billstatus/quickbill.html ((M)Query on Session Year: 2000, Bill Number: HB1444)
Read text of Bill which which includes giving towns explicit authority to make more stringents laws.
155:78 Municipal Ordinances. Nothing in this subdivision shall be construed to restrict the power of any municipality to adopt local laws, ordinances, and regulations that are more stringent than this subdivision.
http://www.gencourt.state.nh.us/legislation/2000/HB1444.html
Rep. William J. Kelley for Municipal and County Government: This bill was introduced to clarify the indoor smoking act with respect to Municipal ordinances. The Committee, by a strong majority vote, agreed that towns and cities should not have the express power to enact ordinances, which restrict smoking more stringently than the state law. Vote 14-4.
On a division vote, 233 members having voted in the affirmative and 103 in the negative, the report [from committee] was adopted.
http://www.gencourt.state.nh.us/hcaljourns/journals/2000/houjou22.html ((N) House Record, vol. 22, HJ p651)
4b) HB1358 2/17/2000 AS INTRODUCED 2000 SESSION Failed
This bill, prohibiting smoking in restaurants. COMMITTEE MAJORITY REPORT: ITL (219 voted against bill v. 110)
See roll Call http://www.gencourt.state.nh.us/ns/rollcall/rollcallsbyvotesummary.asp?legislativebody=H
ANALYSIS This bill prohibits all smoking in any restaurant where serving food is the primary function.
Read text of Bill which includes giving towns explicit authority to make more stringents laws.
155:78 Municipal Ordinances. Nothing in this subdivision shall be construed to restrict the power of any municipality to adopt local laws, ordinances, and regulations that are more stringent than this subdivision.
http://www.gencourt.state.nh.us/legislation/2000/HB1358.html
4c) The proposed ordinance and regulations should have been included in their entirety in the article in the warrant.
RS 39:2 Warrant ...The subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant, and nothing done at any meeting ... shall be valid unless the subject thereof is so stated.
http://gencourt.state.nh.us/rsa/html/III/39/39-2.htm ((O) New Hampshire Revised Statues 39:2 On Line)
4d) The town should have given all the restaurants the proposed ordinance, in writing, two weeks before town meeting.
RSA 43:1 Hearings by Selectmen. ? On petition to the selectmen ... for the purpose of deciding any question affecting the conflicting rights or claims of different persons, their proceedings shall be governed by the following rules.
RSA 43:2 Notice of Hearing. ? They shall ... order notice ... be given to all persons whose ... rights may be directly affected by the proceeding, by giving to them ... an attested copy of the petition and order 14 days at least before such hearing,
http://gencourt.state.nh.us/rsa/html/indexes/43.html
5) Whereas the Colebrook smoking ordinance preempts established New Hampshire State Law which guarantees a restaurant owner's legal right to serve smoking and non-smoking customers alike, making the Colebrook anti-smoking ordinance unconstitutional,
6) Whereas the New Hampshire Supreme Court has found many times over that municipalities do not have the authority to preempt State laws,
7) Whereas I don't want the Town of Colebrook to be forced into a position of defending the legality of an unconstitutional ordinance (i.e. I do not want to waste our tax dollars paying the town attorney) in District Court, Superior Court, or Supreme Court,
8) Whereas non-smokers and smokers alike in the Town of Colebrook are currently accommodated in full accordance with New Hampshire State Law, and licences and permits to legally operate restaurants are granted by the State of New Hampshire, not the Town of Colebrook, and our restaurants are in full compliance with these State licences and permits,
9) Whereas the traditional approach for over two centuries to solving personal preference conflicts in Colebrook and the North Country of New Hampshire has not and never should be to damage property rights and freedom of choice for businesses and citizens, but rather cooperation and a spirit of tolerance,
10) Whereas the anti-smoking ordinance effectively relegates business owners, smokers of legal age (including many of our Senior Citizens), and non-smokers who love and esteem property rights to the status of Second Class Citizens, unwelcome on the premises of privately-owned businesses, reminiscent of racist Jim Crow laws,
11) Whereas the Selectmen of the Town of Colebrook wisely cautioned against voting for the anti-smoking ordinance at the March 2002 Town Meeting to ensure the rights of all Colebrook citizens, business and property owners,
I encourage and respectfully implore the selectmen to exercise their sound judgement and prudential responsibility to the Citizens of Colebrook to safeguard against the cost and divisiveness of enforcing and/or defending an unjust and legally unsupportable ordinance. May our selectmen find and declare that the smoking ban is based on falsehoods and is illegal under New Hampshire State Law until municipalities' authority to pass such an ordinance is defined and declared clearly by New Hampshire State Law.
Why is the "Live Free or Die" state undermining the free market choices of its Citizens?
http://colebrookjustice.tripod.com/NHBudget.html
Epidemiology 101 http://www.davehitt.com/facts/epid.html
If you think Statistics is a complex, difficult to understand subject, you're right, but this page will help remove a lot of the mystery. If you think Statistics can be twisted and manipulated to produce just about any desired result, you're right again. But once you know how the numbers are twisted, it is usually easy to spot the dishonesty.
Epidemiology 102 http://www.davehitt.com/facts/epid2.html
Now that you've learned some of the basics of epidemiology, you'll know what kinds of errors to watch for.
Antis often fold with a little organized opposition, particularly if that opposition still has some good old American backbone. I just wish there were more of those.
The BIG LIE! The will of the people does not give government at any level the power to regulate any private business on the basis of false data. This whole niconarconazi movement is not about second-hand smoke (which, BTW, was a study ruled fraudulent by the Supreme Court three or four years ago). It is just another avenue the socialists are using to subvert the essence of our Republic and attempting to turn it into a de facto democracy -- wherein 51 per cent of the people can dictate to the other forty-nine percent that they must walk on the curb and sit in the back of the bus.
If more crap like this continues, the more it will become clear that it is way past time to re-constitute our Republic. We are having a hard enough time rallying to eliminate the threats posed by foreign terrorists without having to worry about domestic terrorists.
That has happened, not by choice, to some places that have enacted a smoking ban.
You are without a doubt, one of the most well versed and intelligent people of our time dealing with the horrible war on the smokers.
How ANY one can fight for bans after reading your works will be installed into the Hall Of The Idiots.
Wonderful work, dear Max! I am so impressed and amazed! You must have spent countless hours on this!
Oh, and BTW... regarding Stale Bread and Stale Air -- restaurants serve "stale bread" all the time. They are called croutons.
Regards,
Bubba, what's the recall procedure for your civil serpents in Round Rock, TX? 'Bout time to mount a real defense, and we all know the best defense is a butt-kickin' OFFENSE! (I think we need to update the old battle cry "Remember the Alamo" to "Remember Albuquerque!") What say you?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.