By D.J. Wilson

The Supreme Judicial Court is expected to schedule a hearing this fall on an appeal by Athol regarding its smoking ban on local private clubs.

In 2004, Athol joined 24 other municipalities by extending the state’s smoke-free workplace law to cover private clubs.

The state law (M.G.L. Ch. 270, Sec. 22) prohibits smoking in an “enclosed indoor space of a membership association [private club]” during the time the space is open to the public or when a “contract employee, temporary employee or independent contractor” is present. Under the law, smoking may be permitted when a private club’s enclosed space is occupied solely by members, members’ guests and club employees who have employment taxes withheld.

The state law also contains clear anti-preemption language, however, which states, “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 Athol, and in almost all other instances, the restriction placed on private clubs was in response to local restaurants and bars complaining that the community’s private clubs act like public bars, thereby providing unfair competition to these for-profit businesses. Typical specific concerns center around private clubs being lax about membership enrollment requirements, guest policies, and compliance with the rules of their private club liquor licenses.

Three Athol private clubs sued the town after the enactment of the local bylaw, alleging that the Board of Health did not have the authority to enforce a smoking ban in their establishments because of limitations on the board’s general authority and limitations in state law.

The Worcester Superior Court found for the private clubs, regardless of the anti-preemption language. The decision stated, “This Court cannot conclude that the Legislature intended to grant a local Board of Health that broad an authority over smoking in private membership clubs” and that Athol’s regulation “…clearly flies in the face of the statute carefully and clearly crafted by the Legislature to exempt private membership clubs.”

The focus of Athol’s appeal will be the anti-preemption language, intended by the Legislature to permit a city or town to regulate beyond the state law for private clubs and other exemptions listed in that law. Concerns have been raised that if the anti-preemption language in this state law is not sufficient to permit local action, similar language in other state laws may also block local regulation.

Amicus briefs will be prepared for a mid-June submission deadline by entities agreeing with Athol’s reliance on the anti-preemption language.

For more information, contact D.J. Wilson at the MMA.