Cigarette vending ban overturned Court rejects laws prohibiting machines accessible to children

September 18, 1993|By William F. Zorzi Jr. | William F. Zorzi Jr.,Staff Writer

In a roaring victory for the tobacco lobby, Maryland's highest court yesterday threw out two local laws that banned cigarette vending machines from places considered easily accessible to children.

The Maryland Court of Appeals overruled a Prince George's County judge who said the towns of Bowie and Takoma Park had the right to restrict the location of vending machines.

Both laws are unconstitutional and invalid, the high court found.

Bruce C. Bereano, lobbyist for the Washington-based Tobacco Institute and lawyer for two local cigarette vending machine companies, was jubilant. He said it was the first time the industry had won a ruling from a state's highest court that local governments may not limit cigarette vending machine sales. The industry has lost similar battles in other states.

Both sides said yesterday's opinion likely puts to rest a pending appeal of a Montgomery County case, in which a circuit judge ruled invalid a county law that sought to ban all cigarette sales from vending machines.

The decision also raises questions about the legal vulnerability of other local bans and restrictions on smoking in Maryland municipalities.

"I am going to be looking very painstakingly to see if there's any language . . . in the opinion that would give me foundation to challenge local governments that have passed anti-smoking bills," Mr. Bereano said.

The ability of local governments to restrict smoking and cigarette sales is a major concern for the tobacco industry. It once fought most of those battles in Congress and state legislatures, where it maintains a strong presence and successful record.

But in recent years, the anti-smoking movement has focused on local laws, forcing tobacco lobbyists to engage in expensive guerrilla warfare in cities, counties and towns where local activists may have the upper hand.

Had they been allowed to stand, the Bowie and Takoma ordinances would have prohibited cigarette vending machines in places that are "generally" accessible to children -- such as restaurants -- and are not monitored. About a dozen machines would have been affected.

In its 34-page opinion, the Court of Appeals ruled that state law pre-empted the two local laws because the Maryland General Assembly has passed legislation on the sale and taxation of cigarettes.

Through those laws, the court said, the legislature has shown an intent that state government should "completely occupy the field of the sale of cigarettes through vending machines." That intent renders "any local or municipal ordinances in this area constitutionally invalid," the majority opinion stated.

Roy L. Mason, one of the Baltimore attorneys representing both Bowie and Takoma Park, said he feared the opinion could lead to efforts to limit the ability of local governments to pass laws in other areas.

"Lawyers will use this case to try to prevent any action by local governments or municipalities, whenever the state legislature has acted in the same field -- at all," Mr. Mason said.

"And since we have literally thousands of statutes passed by the state and a hundred or so added every year, the local governments are going to be hard pressed to find anything to regulate other than chewing gum on bedposts."

Mr. Mason said he would recommend to the town governments that the decision be appealed to the U.S. Supreme Court.

But Deputy Attorney General Ralph S. Tyler suggested that the remedy for Takoma Park and Bowie, should they want to keep the smoking restrictions, "is to get the General Assembly to grant the local jurisdictions the authority to do what they want to do."

That is easier said than done, because it throws the issue back into the state legislative arena, where Mr. Bereano holds formidable power.

In arguments before the court earlier this year, Mr. Bereano cited his record of defeating cigarette vending machine bills in the General Assembly over the past five years to bolster his case.

During this year's legislative session, for example, Mr. Bereano effectively killed a bill introduced by the governor that would have raised the maximum fine for selling cigarettes to minors from $100 to $1,000 -- an effort to crack down on stores that sell cigarettes to children.

The governor's bill also would have given local governments powers to adopt stricter laws if they wished.

l Mr. Bereano persuaded the House Judiciary Committee, which is run by lawyers such as himself, to take out the sentence about local governments because it would have hurt his ability to win the Bowie-Takoma Park and Montgomery County lawsuits he filed.

The heavily amended legislation died in the final days of the session, when a conference committee failed to reach agreement on the language.

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