A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 19-137, regarding a report on determining if Inspectional Services can be given authority to issue citations for smoking in non-smoking buildings

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor , ANTIQVIS Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Samuel A. Aylesworth Katherine Sarmini Hoffman First Assistant City Solicitor ACO RIGININE Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 October 5, 2020 Louis A. DePasquale City Manager City Hall Cambridge, MA 02139 Re: Response to Awaiting Report No. 19-137 and Calendar Item #4, of October 7, 2019, a report on determining if IS can be given authority to issue citations for smoking in non-smoking buildings and report back to the City Council. Dear Mr. DePasquale: This is in response to Awaiting Report No. 19-137 and Calendar Item #4, of October 7, 2019, attached hereto, which requests a report on determining if the Inspectional Services Department "can be given authority to issue citations for smoking in non-smoking buildings and report back to the City Council." Currently there is no express authority for the City to issue citations to individuals or private property owners to enforce a private property owner's own regulation related to smoking in private residential buildings. Massachusetts law does not affirmatively grant municipalities power to enforce a private property owner's regulation related to smoking, and regulating the landlord-tenant relationship in private buildings in this way might be construed by a court as constituting the enactment of an illegal "civil law governing civil relationships" outside of an independent municipal power. See Marshal House, Inc. v. Rent Review and Grievance Board of Brookline, 357 Mass. 709, 717 (1970)(holding that a bylaw which required that rents be fair and reasonable invalidly regulated a civil relationship outside of an independent municipal power); see also Bannerman v. City of Fall River, 391 Mass. 328 (1984)(holding that an ordinance which required that a board approve a conversion of rental property to condominiums invalidly regulated a civil relationship outside the exercise of an independent municipal power). In addition, we were unable to find any municipality in Massachusetts which has enacted an ordinance which enforces a private landowner's smoking prohibition with respect to a private building. TTY/TTD [phone removed] Facsimile [phone removed] Telephone [phone removed]

2 Tenants have a private right of action against a landlord to enforce a private lease and the rules and regulations related to such lease, whether such rules are related to smoking or otherwise. Conversely, landlords have private legal remedies against tenants. I do not believe it would be appropriate for the City to seek to bring an action or levy fines based upon a landlord's smoking rules and regulations on behalf of private individuals against other private individuals who have a contractual landlord-tenant relationship. Very Truly Yours, Nancy E. Glowa City Solicitor Enc. 2