Legal problems as Essential Tools for Public Policy Mindy Sweeney

Republican Governor elected on anti-tax 400 House Members 281-R, 119-D 24 Senate Members 18-R, 6-D

 March 12, 2002, Colebrook passed a warrant article for clean indoor air. The article followed the same model as the Keene ordinance, no smoking in restaurants with the exemption for those establishments with cocktail lounges, so long as they have floor to ceiling walls and a door that separates the lounge from the rest of the restaurant, and they install a separate ventilation system.  The vote passed with 71 to 45

April 9 th there was a public hearing on the implementation of the article. Opposition spoke and convinced the town selectmen for a second town vote on the issue after threatening they could petition the Superior Court for a special town meeting. An informational public hearing was organized for May 14 th and a special town meeting was set for May 29 th at which a vote by the towns people would take place again.

 During the time before the second vote, SFNHA worked with the locals to provide a letter from Dr. Robert Soucy (the town health officer and physician who introduced the article) to all registered voters.  Our contract grassroots person from ACS did a training with local folks and youth to help prepare them for the May 14 th public hearing.

SFNHA paid for CDC ads to run in the local papers and sent two postcard mailings.

May 29 th, 2003 the town had their special town meeting and voted 262 to 106 to keep the warrant article.

August 16, 2002 – the town was given notice from Coos Superior Court that they were being sued by the Colebrook House, a local restaurant, over the ordinance. A hearing was set for October 31, 2002.

The Town of Colebrook The Colebrook House In the right corner, we have In the left corner, we have

The town hired Sheehan, Phinney and Bass, an expensive law firm in Concord who had strong links to the tobacco industry, to represent them. Their affiliate Sheehan, Phinney Capital Group lobby for Philip Morris U.S.A.

 In February 2003, The Colebrook House filed an appeal to the NH Supreme Court.  The NH Supreme Court accepted the case in March 2003 and set a date of April 18th for the plaintiff to file their brief, and a date of May 18th for the defendant to file their brief.

 With strong support from American’s for Nonsmokers’ Rights, the Tobacco Technical Assistance Consortium (TTAC) were able to offer financial support to write an amicus brief in support of the town of Colebrook.  TTAC also put us in touch with the Tobacco Control Resource Center, located at Northeastern Law School, who actually wrote the amicus brief.

 On May 18th, 2003, SFNHA had the Tobacco Control Resource Center (Bob Kline, Northeastern School of Law) submit an amicus brief in support of the town.  The Tobacco Control Resource Center also located an attorney willing to deliver the brief to the court.

Seven Organizations signed onto the amicus brief 1.American Lung Association of NH 2.American Cancer Society 3.American Heart Association of NH 4.Smoke-Free NH Alliance 5.NH Public Health Association 6.NH Medical Society 7.Tobacco Control Resource Center

Oral arguments were heard on July 10 th, 2003 by the NH Supreme Court judges. 15 minutes were given to each side and the judges asked questions.

The court had 2 questions: Does the NH Indoor Smoking Act set a floor or a ceiling with respect to the regulation of smoking in restaurants? What was the Legislature’s intent in including provision 77 in the Indoor Smoking Act?

On August 19, 2003, a verdict was returned on the case in favor of the Colebrook House. The Court ruled that the current NH Indoor Smoking Act does preempt local communities from passing stronger restrictions than the state law.

As a result of the Supreme Court Ruling, every city in NH lost their authority to enforce any restrictions stronger than the state law. SFNHA & its partners have developed a strategy to strengthen the current NH Indoor Smoking Act and include anti-preemptive language.

Americans for Nonsmokers Rights TTAC Northeastern School of Law Tobacco Resource Control Center