Anti-Smoking Advocates Now Going After Private Clubs and Open Air Restaurants
By Amy Lambiaso for the State House News Service
     Nearly a year after Massachusetts banned smoking in most workplaces, state public health officials are floating new rules to govern when smoking is allowable in private clubs and outdoor areas of restaurants.
     The current law, which took effect July 5, 2004, exempts membership organizations such as veterans’ clubs, country clubs and Elks clubs, from the smoking ban when it is open to members. Public health officials say they have received more than 200 calls and 60 “serious complaints” from clubs or customers looking for clarifications on the law. Less than five of those complaints resulted in a fine, officials said.
     “The law was very general when it was written,” said Sally Fogerty, associate commissioner for the Department of Public Health (DPH), who presented the draft regulations to the Public Health Council Tuesday. In addition, she said, the state received complaints that non-members were smoking in clubs.
     The three pages of proposed regulations, which will be the subject of a public hearing in May, clarify those generalities, she said. Under the regulations, smoking would be banned in private clubs when they are open to the public, rented by the association for a fee and occupied by a contracted employee, or occupied by a non-member who is not a guest.
     Membership organizations could also designate parts of the club as smoking areas, provided that the area would not be open to the public and would not be open for “migration” of smoke into public areas.
     Eileen Sullivan, director of policy for the Tobacco Control Program at the DPH, said the current law does not define “member” of a private organization. The proposed definition seeks to make the exemption consistent throughout the state.
     But public health advocates and those representing restaurants, bars and private clubs said the exemption of membership clubs from the law has negatively affected business at neighborhood bars and works contrary to the law’s intention.
     “It’s crazy, it’s divisive and it’s wrong,” said Peter Christie, president and CEO of the Massachusetts Restaurant Association, who had not yet seen the proposed regulations. “It is absolutely absurd that smoking is allowed in fraternal clubs. Every argument they made of why it’s a public health hazard should be made for fraternal clubs.”
     Geoff Wilkinson, executive director of the Massachusetts Public Health Association, said he too was disappointed that the regulations did not tighten the exemption of membership organizations, noting the workers in such clubs are also exposed to second-hand smoke, the main target of the new law.
     Sen. Richard Moore (D-Uxbridge), co-chairman of the Health Care Financing Committee, said he is concerned that local boards of health do not have enough manpower to enforce the law, and worries that violations will continue to go unnoticed and unpunished.
     According to a voluntary survey conducted by the department, 21 of the 166 local boards of health responding to the survey issued citations or fines to restaurants or bars for violating the law between July and December 2004.
The regulations also look to define outdoor areas for restaurants and clubs, and propose allowing smoking on patios if smoke could not “migrate” into the enclosed restaurant.
     Interpretation of that definition would be left up to restaurant owners and subject to enforcement by local boards of health, Sullivan said. The definition is not a change in the current law, she said, but looks to advise businesses seeking to build additions on existing structures.