February 16, 2011
By Staff Reporter
By Jim Smith
BOSTON — The Massachusetts Supreme Judicial Court has agreed to review the case of a Hyannis bar that claims that the Barnstable Board of Health had no authority to enact the smoking ban that went into effect on April 3.
The case, which is expected to be heard early this summer, is offering a glimmer of hope to bar owners who have been reeling from a drop-off in business, especially during the late-night hours, since smoking bans were passed in several mid-Cape towns.
Osterville attorney Edward Kirk, who represents the Windjammer Lounge, is arguing that a smoking regulation constitutes legislative action and should therefore be enacted by lawmakers on the Barnstable Town Council and not by the local board of health.
If successful, Kirk’s challenge will have broad implications for towns and cities throughout Massachusetts. About 120 state cities and towns presently have some form of smoking ban.
Several bar managers at Irish pubs and restaurants along busy Rte. 28 in the neighboring town of Yarmouth have been publicly critical of the local board of health, describing its members as a small group of "busybodies" who have overstepped their bounds. In addition, some members of the Barnstable Town Council have publicly decried the ban as another example of excessive governmental intrusion into the lives of residents.
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