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Claremont City Council Questions Smoking Ban

Claremont — As the City Council continues to grapple with whether to prohibit smoking in some city parks, the question of whether municipalities have the authority to pass a ban using the state law that bans indoor smoking in a number of public places seems unclear.

Newport’s new ordinance — which references New Hampshire’s Indoor Smoking Act banning smoking in such indoor facilities as elevators, grocery stores, hospitals, restaurants and public schools — was passed in March. The Newport ordinance applies outdoors only when there are events taking place, such as summer concerts on the common and athletics events and around playgrounds when people are using the structure.

“If they are actively being used, there is no smoking, but if no one is around, smoking is fine,” Newport Police Chief Jim Burroughs said at this week’s Lebanon Selectboard meeting. “If someone wants to eat lunch on the common and there is no one around, they can smoke away.”

Newport Town Manager Paul Brown said the ordinance was written because of residents complaining about smoke during events.

In reference to the state indoor smoking ban, which addresses public health, Newport’s ordinance states “in furtherance of that statute there shall be no smoking permitted at any municipal park, common ball fields or municipal parking lot while any sanctioned event is being held.”

People are also prohibited from smoking within 20 feet of any play structure being used nor can they smoke within 20 feet of a common entrance to a municipal building.

Officials in the town of Pelham, N.H., do not believe the state law can be extended to the outdoors. The Selectboard there first banned all outdoor smoking in town parks only to rescind the ban earlier this month.

A New Hampshire Municipal Association attorney told the town it did not have the authority to impose a ban, according to an Associated Press story.

“We were told that statutorily, we did not have the authority to enact a ban,” said Pelham Town Administrator Brian McCarthy, explaining why the board reversed its decision.

McCarthy said town officials were advised that the Legislature would have to pass a law allowing towns to prohibit smoking outdoors in order for the town to ban outdoor smoking.

“It is a dead issue for now,” he said.

Paul Sanderson, a staff attorney with the New Hampshire Municipal Association, said towns are only allowed to enact ordinances and regulations based on what state law allows and there is no law that specifically addresses outdoor smoking bans, which puts the issue in a gray area.

“It is unclear what they (towns) have the authority to do,” Sanderson said.

Sanderson made reference to state law that allows towns to manage town-owned property.

“Can they prohibit an otherwise lawful activity on property they own? That is not clear,” he said.

When asked about Newport’s ordinance, Sanderson said, “That is one approach. I guess if someone challenges it, the courts will give us an answer.”

In May, the Claremont City Council discussed a complete smoking ban at all city-owned parks, including the wooded areas at Arrowhead and Moody Park, but councilors agreed it was too restrictive and would be tough to enforce. Then earlier this month, the council considered an ordinance that banned smoking at city parks with playgrounds and where athletic events happen regularly. But that also was seen as too restrictive and several residents also spoke out against it. The next step is to consider designated smoking areas, which could be presented to the council in July.

City attorney Jane Taylor said that absent a state law that allows for banning outdoor smoking, the city could cite public health and safety as a reason.

“I think an argument can be made that regulating smoking (in parks) where there is activity can be supported on the basis of public safety,” Taylor said.

Taylor echoed what Sanderson said about state law. “There is no direct authority that says municipalities can regulate outdoor smoking but clearly they have the ability to enact regulations to protect public health and safety,” Taylor said.

Hanover Town Manager Julia Griffin said her town does not have any smoking bans.

“We considered one in the downtown area on public sidewalks beyond the (right of way) ... but the Selectboard felt it would be too difficult to enforce and simply put an additional burden on our police department,” Griffin said via email. “With campuses like DHMC and APD going smoke free, along with Hypertherm, there has been some considerable pressure from non-smokers for towns to ban smoking in outdoor public places but enforcement is the challenge, not to mention the likely potential for legal challenge.”

Similarly, Lebanon has taken a minimalist approach on a smoking ban.

“The only place currently regulated in Lebanon is the area surrounding the pool,” Deputy City Manager Paula Maville said via email.

Claremont resident Jim Feleen, an attorney and a member of Claremont’s Parks and Recreation Committee, presented the proposed ban to the council that was developed by the commission. He supports a complete ban in all parks and cited the state’s authority to ban smoking in state parks as a precedent. As far as the towns are concerned, Feleen reads their authority differently than Sanderson.

“My understanding of the rules of state government is if there is no legislation, municipalities are free to weigh ordinances so long as they are consistent with the state and federal constitutions,” Feleen said.

He said without an established law, the state could begin to see a patchwork of different types of ordinances from town to town.

Sanderson, the municipal association attorney, said lawmakers could soon take notice.

“If residents feel this is something that should be done, it is an issue for the state to resolve,” he said.

News staff writer John Gregg contributed to this report.

Patrick O’Grady can be reached at pogclmt@gmail.com.