Can a Minnesota city pass an ordinance that completely bans smoking in restaurants, or does the state Clean Indoor Air Act preempt local rules?

Plain-English summary

The Little Falls City Council was considering an ordinance to prohibit smoking in city restaurants. City attorney Peter Vogel asked the AG whether the Minnesota Clean Indoor Air Act (CIAA), which already addressed smoking in restaurants and other public places, preempted a stricter local ban.

The AG answered no. The CIAA, codified at Minn. Stat. §§ 144.411-144.417, did regulate smoking in public places, but Section 144.415 explicitly preserved local authority: "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's implementing rules (Minn. R. 4620.0050) repeated the same exception. So the CIAA itself contemplated that a local ordinance could go further than the state rules and prohibit smoking entirely.

Because the legislature had spoken expressly, the AG did not need to run the usual Mangold preemption analysis (whether state law "occupies the field" or implicitly excludes local regulation). The express statutory carve-out for local ordinances answered the question directly.

The AG also flagged that cities have broad police power authority to regulate smoking under their general welfare clause, citing State v. The Crabtree Co., 218 Minn. 36, 15 N.W.2d 98 (Minn. 1944), where the Minnesota Supreme Court had upheld a Minneapolis cigarette licensing ordinance. The combination of long-established police powers and express CIAA preservation of local authority made the conclusion straightforward.

The opinion is short and direct: a Little Falls ordinance banning all restaurant smoking is consistent with state law, not preempted by it.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. In particular, the Minnesota Freedom to Breathe Act of 2007 substantially amended the Clean Indoor Air Act and now imposes a near-statewide ban on smoking in most workplaces and public places, including restaurants and bars. The preemption question this opinion addressed is therefore largely moot today: state law itself now requires what Little Falls considered in 2000. Anyone applying this opinion today should pull the current text of Minn. Stat. ch. 144 and verify the current scope of local-versus-state authority over smoking.

Historical context: what the AG concluded

The AG's analysis turned on three statutory observations and one case-law principle.

First, the CIAA's purpose statement, § 144.412, was protective: "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." That is a floor, not a ceiling.

Second, § 144.413, subd. 2 broadly defined "public places" to include restaurants. Section 144.414, subd. 1 prohibited smoking in public places except in designated smoking areas. Subdivisions 2 and 3(a) of § 144.414 named specific places (areas with children, ill or injured persons) where smoking was prohibited unconditionally. For other places like restaurants, designation by the proprietor was permitted as long as the designated area met § 144.415 and the Health Department's rules.

Third, and decisive, § 144.415 said designations are allowed "except in places in which smoking is prohibited by the fire marshal or by other law, ordinance or rule." The phrase "other law, ordinance or rule" expressly captured the possibility of a local ordinance going further than the state law. The Health Department's rule Minn. R. 4620.0050 repeated the same carve-out.

The AG also cited State v. The Crabtree Co. for the broader proposition that cities have well-established police power authority over cigarettes and tobacco. Crabtree upheld a Minneapolis licensing ordinance and articulated the rule that a city or village may operate in the cigarette-regulation field under its general welfare clause unless expressly excluded by legislative enactment. The CIAA, by including the express savings clause for ordinances, fell on the inclusion side.

The AG also distanced itself from a city attorney opinion from another municipality (cited in the request but unnamed) that had read the CIAA more narrowly to limit municipal authority to designating smoking areas only. The AG disagreed with that reading.

Common questions

Q: After this opinion, did any Minnesota court enforce or reject a local smoking ban?
A: Several Minnesota municipalities (including Bloomington, Minneapolis, Duluth) adopted local smoking bans in the years after this opinion, and a few court challenges followed. The general direction supported local authority until the legislature passed the 2007 Freedom to Breathe Act, which made the state-versus-local question largely academic.

Q: Did this opinion give cities authority to regulate smoking in bars and other workplaces, not just restaurants?
A: The opinion is specific to restaurants because that was the Little Falls question. The CIAA's "public places" definition is broader, however, and the reasoning would extend to other public places the CIAA covered.

Q: What about preemption from federal tobacco laws?
A: The opinion does not address federal preemption. Federal cigarette labeling laws preempt only certain warning-label regulations, not local smoking bans. Federal law generally leaves smoking bans to the states and their political subdivisions.

Q: Is the Mangold analysis still useful for other preemption questions?
A: Yes. Mangold Midwest Co. v. Village of Richfield (1966) remains the leading Minnesota case on the test for implied preemption: whether state law occupies the field or implicitly prohibits conflicting or inconsistent local regulation. The AG sidestepped that test here only because the CIAA contained an express savings clause.

Q: What did the legislature do later?
A: The 2007 Freedom to Breathe Act, codified at Minn. Stat. §§ 144.411-144.4168, dropped the proprietor-designation regime almost entirely and prohibits smoking in most workplaces, restaurants, and bars statewide. The narrow set of exceptions does not include restaurants or bars. The 2007 amendments effectively made the Little Falls question moot.

Background and statutory framework

The Minnesota Clean Indoor Air Act (CIAA), first enacted in 1975 (Laws 1975, ch. 211), was the first state statute in Minnesota to address secondhand smoke (then called "second-hand smoke," now usually "environmental tobacco smoke"). As it stood in 1999 and 2000 when the Little Falls question came up, the CIAA:

• Stated a purpose of protecting public health, comfort, and environment.
• Broadly defined "public places" to include restaurants.
• Generally prohibited smoking in public places except in designated smoking areas.
• Allowed proprietors of certain public places (restaurants included) to designate smoking areas, subject to fire marshal limits and to "other law, ordinance or rule" prohibitions.
• Was implemented by Health Department rules at Minn. R. ch. 4620.

The 2007 Freedom to Breathe Act later restructured the CIAA into a near-comprehensive workplace and public-place smoking ban, eliminating most proprietor-designation options.

The opinion is signed by AG Mike Hatch, with a cc to Stephen Shakman.

Citations and references

Statutes:
- Minn. Stat. §§ 144.411-144.417 (Supp. 1999)
- Minn. Stat. § 144.412 (purpose)
- Minn. Stat. § 144.413, subd. 2 (definitions)
- Minn. Stat. § 144.414, subds. 1, 2, 3(a)
- Minn. Stat. § 144.415 (designation of smoking areas, with savings clause)
- Minn. R. 4620.0050-4620.1450 (1999)

Cases:
- State v. The Crabtree Co., 218 Minn. 36, 15 N.W.2d 98 (Minn. 1944)
- Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d 813 (Minn. 1966)

Historical:
- Minn. Laws 1975, ch. 211 (original CIAA)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/62b-20000504.pdf

Original opinion text

CITIES: ORDINANCES: PREEMPTION: A city may completely prohibit smoking in restaurants under its general police powers. The Minnesota Clean Indoor 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. In a letter to the Attorney General you submit the following:

QUESTION

Do Minnesota Statutes 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. 1999), it did so while expressly preserving the power of local government to impose more stringent smoking limitations.

The authority for local regulation of smoking and of tobacco products in this state has long been established. In 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.

State v. The Crabtree Co., 218 Minn. 36, 40, 15 N.W.2d 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 Indoor Air Act (CIAA), Minn. Laws 1975, ch. 211. Examination of the CIAA, and rules promulgated by the Commissioner of Health pursuant to the CIAA, indicate that these state restrictions on smoking in restaurants do not preempt local ordinances which prohibit smoking in restaurants.

The CIAA'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 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 prohibition 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 Department rules. This exception, however, can be overruled by fire marshal action, or by other law, ordinance, or rule. In other words, a local government can by ordinance negate a proprietor's ability under the CIAA to designate smoking areas in a restaurant.

[Footnote 2: Included 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 CIAA to limit municipal authority to the adoption of ordinances which designate smoking areas in public places.]

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 prohibits conflicting or inconsistent local regulation. See Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d 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. In 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
Attorney General

cc: Stephen Shakman