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"If you know of court cases, I would be interested in reading them. Or, at least, in articles about them.
I'm not one to stand on incorrect statements. I will look at ALL the evedence."

Here is one. There are MANY more. It is amazing that you "think" without even bothering to use your search engine.

Court rejects challenge to local smoking bans
By David Kibbe, Ottaway News Service

BOSTON -- The state's highest court yesterday upheld the town of Barnstable's smoking ban in bars and restaurants, rejecting a challenge by the owners of the Windjammer Lounge in Hyannis.

The unanimous decision by the Supreme Judicial Court reaffirmed the right of local health boards to impose smoking bans.

It was the first time the state's top court had ruled on local smoking bans, and the case was watched closely around the state. The ruling was applauded by anti-smoking groups, including the American Lung Association.

"Second-hand smoke has been determined to be a hazard to health," said Sumner Kaufman, a member of the Barnstable Board of Health. "It's about time that has been recognized, and it's one of the reasons why the Board of Health exists -- to save the public health."

The Barnstable Board of Health imposed the smoking ban last April, becoming the second-to-last town on the Cape and the 122nd town in the state to limit smoking in restaurants.

In SouthCoast, New Bedford, Dartmouth and Fairhaven adopted restaurant smoking bans in January 2000. Unless an establishment is declared "adults only," no smoking is allowed.

Initially, there was considerable outcry, but a year after the fact, the ban is a fact of life.

Meanwhile, other communities continue to grapple with the issue. Wareham enacted a ban, only to suspend it after two months when restaurant owners there said their businesses were being hit hard. The measure is now under a three-month review.

Acushnet is considering a ban and is scheduled to decide sometime this month, while Mattapoisett's ban takes effect Feb. 1

Yarmouth passed a smoking ban soon after Barnstable.
The decision was controversial among proprietors of bars, restaurants, veteran halls and social clubs, who feared it would hurt business.

"I really thought we were correct in our position that these guys have gone too far, but I think the sentiment at this time is against smoking," said Peter Feeney, one of the Windjammer's owners. "I don't feel there is a big danger in second-hand smoke. It's still legal as far as I know, and they're treating it as if it isn't."

The Windjammer spent about $22,000 fighting the case. "I really felt I had to give it a shot for every business down here," Feeney said. "I don't regret it."
The Windjammer's lawyer, Edward Kirk of Osterville, attacked the smoking ban on several fronts.

Kirk argued that it conflicted with state law. In 1987, the state Legislature banned smoking in some public places, including courthouses, schools, health-care facilities, museums and libraries. But lawmakers stopped short of a statewide ban. Instead, they required larger restaurants to have nonsmoking sections.

Furthermore, Kirk said elected boards -- not appointed health boards -- should have the power to impose smoking bans. He also claimed the Barnstable Board of Health failed to prove that limited contact with second-hand smoke was dangerous.

The Supreme Judicial Court rejected each one of the arguments.

"The Legislature has already made the determination that smoking should be prohibited or regulated in certain public locations, including restaurants, and has explicitly left municipalities and their boards of health the power to implement stricter regulations on smoking in public places," wrote Associate Justice Judith Cowin.
Cowin said the Legislature, "in plain language ... delegated boards of health the power to adopt reasonable health regulations."

Health officials across the state were relieved. They feared the court would strip them of a broad range of powers, from restricting smoking to protecting groundwater.
"Let's face it, the city councilors and mayors and selectmen tend to be more sympathetic and have more awareness of issues pending to local business than they do to public health," said Marcia Benes, the executive director of the state Association of Health Boards. "If you don't have a local agency that is specifically looking at protecting public health, that will always take a second fiddle to business interests."

The state attorney general, the Association of Health Boards and the Tobacco Control Resource Center at Northeastern University filed briefs supporting the Barnstable Board of Health.

The city of Salem filed a brief supporting the Windjammer's argument that elected municipal governments -- not health boards -- had the authority to impose smoking bans. The Salem Board of Health has approved a smoking ban in bars and restaurants over the objections of the city solicitor.

The Windjammer maintained there was no proof that diners who encountered second-hand smoke were at risk. But the court said the Windjammer failed prove that it wasn't a risk.

"We have previously recognized the ill effects of tobacco use, particularly when it involves minors, as a legitimate municipal health concern justifying municipal regulation of tobacco products," Cowin wrote.

Feeney believes the ban is hurting his business by forcing smokers to drive to towns with less restrictive smoking laws. But the court noted studies that have shown bars and restaurants aren't losing money under smoking bans.

Kaufman said the economic argument "is without merit." He's talked to people who stayed away from smoky restaurants, but "now are happy to go." Superior Court Judge Gary Nickerson rejected the Windjammer's request for a preliminary injunction to stop the smoking ban last March. The Supreme Judicial Court agreed to hear the case before it went any further.

Town Attorney Robert Smith argued the ban was legal during a court hearing in Brockton in November. Technically, yesterday's ruling was only on the preliminary injunction, so the case could be send back to Superior Court for a full hearing. But the Supreme Judicial Court addressed every major issue the Windjammer raised, so the restaurant is dropping the case.

"When it's over, it's over," Kirk said.