Op. Atty. Gen. 62b (Cr. Ref. 477b) ( 2000 )

CITIES: ORDINANCES: PREEMPTION: A city may completely prohibit smoking in
restaurants under its general police powers. The Minnesota Clean lndoor Air Act expressly
preserves the authority of cities to ban smoking where the Act, and Health Department rules
promulgated thereunder, would otherwise allow designation of smoking areas by the proprietor.
62b
(cr.ref. 477b)
May 4, 2000
Mr. Peter Vogel
Rosenmeier, Anderson & Vogel
210 Second Street N.E.
Little Falls, MN 56345
Dear Mr. Vogel:
You are an attorney representing the City of Little Falls, Minnesota. The City Council is
considering whether it can adopt an ordinance, pursuant to its general police power, to prohibit
the smoking of tobacco in restaurants ln a letter to the Attorney General you submit the
following:
QUESTION
Do Minnesota Statues which authorize the regulation of smoking in
restaurants by the Department of Health preempt a complete ban on smoking in
restaurants by local ordinance?
OPINION
We answer your question in the negative. While the legislature has addressed smoking in
restaurants and other public places under the Minnesota Clean Indoor Air Act, Minn. Stat.
§§ 144.411-144.417 (Supp.l999), it did so while expressly preserving the power of local
government to impose more stringent smoking limitations
Mr. Peter Vo gel
Page 2
The authority for local regulation of smoking and of tobacco products in this state has
long been established ln upholding a conviction of a cigarette wholesaler for violating a
Minneapolis licensing ordinance, the Minnesota Supreme Court observed:
The police power of the legislature in these respects has never been
successfully questioned Both the state and its municipalities have a wide
discretion in resorting to that power for the purpose of preserving public health,
safety, and morals, or abating public nuisances Cigarettes being a proper field of
regulation under the police power, a city or village may operate in that field under
the general welfare clause of its charter unless excluded therefrom by express
legislative enactment
Stale v. The Crabtree Co., 218 Minn. 36, 40, 15 N.W.Zd 98, 100 (Minn. 1944). (Citation
omitted.)
The state first entered into regulation of second-hand smoke (now called “environmental
tobacco smoke”) with the 1975 enactment of the Minnesota Clean lridoor Air Act (CIAA), Minn.
Laws 1975, ch. 211. Examination of the CIAA, and rules promulgated by the Commissioner of
Healthl pursuant to the CIAA, indicate that these state restrictions on smoking in restaurants do
not preempt local ordinances which prohibit smoking in restaurants
The ClAA’s stated purpose “is to protect the public health, comfort and environment by
prohibiting smoking in areas where children or ill or injured persons are present, and by limiting
smoking in public places and at public meetings to designated smoking areas.” Minn. Stat.~
§ 144.412. “Public places” are broadly defined in Minn. Stat. § 144.413, subd. 2, and include
restaurants Section 144.414, subd. 1, provides: “No person shall smoke in a public place or at a
public meeting except in designated smoking areas.” Subdivisions 2 and 3(a) of § 144.414
l Minn. R. 4620.0050-4620.1450 (1999).
Mr. Peter Vogel
Page 3
describe areas where smoking is unconditionally prohibited For other public places, including
restaurants § 144.415 provides (emphasis added):
Smoking areas may be designated by proprietors or other persons in
charge of public places, except in places in which smoking is prohibited by the
fire marshal or by other law, ordinance or rule.
The Health Department rules implementing the CIAA repeat the exception established in
§144.415:
Nothing in parts 4620.0050 to 4620.1500 shall be construed to affect smoking
prohibitions imposed by the fire marshal or other laws, ordinances, or regulations
Minn. R. 4620.0050 (1999).
The above provisions establish a general prohibiti_on on smoking in public places with an
exception for designated smoking areas in restaurants and certain other facilities if proprietors
wish to have them and if they satisfy the requirements of both Minn. Stat. § 144.415 and of the
Health Departrnent rules This exception, however, can be overruled by fire marshal action, or
by other law, ordinance, or rule. ln other words, a local government can by ordinance negate a
proprietor’s ability under the CIAA to designate smoking areas in a restaurantz
In light of this express legislative direction and the well-established power of
municipalities to regulate smoking under their police powers, we do not believe there is a need to
engage in a preemption analysis to determine whether state law “occupies the field” or implicitly
2 lncluded with your request was a copy of a city attorney opinion from another municipality on
a different proposal for an environmental tobacco smoke ordinance We have not reviewed that
proposed ordinance and do not express any opinion on it. We disagree, however, with that
opinion’s construction of the ClAA to limit municipal authority to the adoption of ordinances
which designate smoking areas in public places
Mr. Peter Vo gel
Page 4
prohibits conflicting or inconsistent local regulation See Mangold Midwest Co. v. Village of
Richfi``eld, 274 Minn 347, 143 N.W.Zd 813 (Minn. 1966). That analysis need only be employed
when the intent of the legislature as to local regulation of the same subject must be inferred from
the context of the legislation ln this case, the legislature, by enacting Minn. Stat. 144.415, has
expressly preserved the power of local governments to prohibit smoking in those public places
which the CIAA otherwise leaves open for proprietor-designated smoking areas
Thus, we conclude that an ordinance which prohibits the smoking of tobacco any place in
a public restaurant is consistent with state law and not preempted by it.
Very~truly yours,
MIKE HATCH
Attomey General
cc: Stephen Shakinan