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June 12, 2014

Pelham adopts, rescinds smoking ban

Pelham decision not allowed under state law

PELHAM — Less than two weeks after prohibiting smoking in town parks, selectmen have rescinded the ban.

The board lifted the ban Tuesday after learning it was adopted in violation of state law, which only forbids smoking in enclosed public areas, Selectmen's Chairman Ed Gleason said.

A community cannot outlaw smoking in an open public area, he said.

"We found we didn't have the legislative authority to do it," Gleason said yesterday. "We can't put forward any restrictions unless they are placed there by the state Legislature. You can't restrict smoking outside."

The board voted, 3-2, on May 27 to ban smoking at the town's five parks after discussing signs that would be posted at the parks. That includes Veterans Memorial Park, George Muldoon Park, Elmer Raymond Memorial Park, Golden Brook Park and Dennis Lyons Memorial Park.

The intent was to put up signs clearly stating what was forbidden to avoid confusing the public, Gleason said.

But Selectman William McDevitt voiced concern before the vote that the board might not have the authority to ban smoking. Gleason said the restriction was approved under the premise it would be lifted if officials determined it violated state law.

The board later contacted an attorney with the New Hampshire Municipal Association, which provides legal advice to communities.

They were told that the sections of New Hampshire RSA 155 only forbid smoking at indoor public places. State law also bans smoking in the workplace, restaurants and bars.

Municipal Association staff attorney Paul Sanderson said yesterday that Granite State communities cannot enact ordinances contrary to what's stated in state statute.

"In New Hampshire, municipalities only have the authority that the Legislature gives them," he said.

Towns can stop people from smoking inside, but not outdoors, Sanderson said.

"Our Legislature has not given us authority to take such actions," he said. "It just extends to indoor places."

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