Curran opinion supports local limits on smoking Tobacco lobbyist disputes arguments

October 08, 1993|By John W. Frece | John W. Frece,Staff Writer Staff writer JoAnna Daemmrich contributed to this article.

Maryland's attorney general said yesterday that Baltimore and the state's metropolitan counties have the authority to pass laws banning smoking in public places and limiting cigarette advertising on billboards.

But Attorney General J. Joseph Curran Jr., in an opinion requested by a Prince George's legislator, said a recent Maryland Court of Appeals decision makes clear that only state government can regulate the sale of cigarettes in vending machines.

Mr. Curran said his opinion applies to all "home rule" jurisdictions, including Baltimore, all the major metropolitan counties, Talbot and Wicomico counties on the Eastern Shore, and the state's municipalities.

The opinion was hailed by anti-smoking forces both in Baltimore, where officials are trying to curtail cigarette advertising on billboards, and in Prince George's, where the county health officer would like to limit smoking in public places.

"It's excellent news. It couldn't be better," said Tina Thompson, a Baltimore community activist pushing for a ban on cigarette billboards in the city. "I think all of us have a stake in this. This is about our children."

But the tobacco industry's chief lobbyist in Annapolis, Bruce C. Bereano, questioned whether local bans on smoking in public places may have gone too far by extending into the private work place, and he strongly disagreed with Mr. Curran's interpretation of the federal law on billboard advertising.

In his opinion, Mr. Curran acknowledged that federal law forbids states or local jurisdictions from restricting cigarette advertising if the restrictions are based on concerns about smoking and health. But, Mr. Curran said, if the restriction is based on smoking and some other policy concern -- such as discouraging minors from illegally purchasing cigarettes -- then restrictions on advertising would be permissible.

Mr. Curran's opinion is opposite that of Baltimore City Solicitor Neal M. Janey, who in August 1992 advised the City Council that a bill proposing to ban cigarette billboards was invalid because federal law effectively prevents state or local governments from taking such action.

Mr. Bereano agrees with Mr. Janey. The Tobacco Institute lobbyist -- who also represents vending machine operators and billboard advertisers -- said he sensed "an odor of politics" in Mr. Curran's opinion. Mr. Curran, a Democrat, recently announced plans to seek a third term as attorney general and already has one Republican and two Democratic opponents.

In response, Mr. Curran would only say, "It is a good, sound legal opinion, and I feel comfortable with it."

A number of Maryland jurisdictions restrict smoking in enclosed malls or elsewhere, but the most sweeping restrictions have been enacted by Howard and Talbot counties.

Howard recently banned smoking in malls and severely restricted smoking in restaurants and the work place.

Talbot has passed a law that would prohibit smoking in indoor restaurants, stores, offices, work places, restrooms and elsewhere, but that measure is expected to be challenged before it can take effect later this month.

Baltimore officials are considering legislation that would make the city the first in the nation to ban almost all alcohol and tobacco billboards.

City Councilwoman Sheila Dixon, a 4th District Democrat, introduced twin bills last month that would prohibit the billboards except in heavy industrial zones and near the Pimlico Race Course, Memorial Stadium and Oriole Park at Camden Yards. The measures are supported by Mayor Kurt L. Schmoke, Council President Mary Pat Clarke and a dozen council members.

Officials have said such a measure could slow the spread of tobacco use among minors and minorities.

Penn Advertising of Baltimore Inc., which owns 90 percent of the billboards in the city, denies that liquor and tobacco are advertised more heavily in minority neighborhoods. Fred M. Lauer, the company's attorney, says advertisers try to spread out across the city to reach the greatest number of consumers.

"The city solicitor's opinion is contrary to what the attorney general said. Somehow, that's going to have to be reconciled," Mr. Lauer said.

Del. Timothy F. Maloney, a Prince George's Democrat, said he requested the opinion on behalf of Dr. Martin P. Wasserman, the county's health officer, who wanted clarification of local authority to regulate smoking.

Mr. Maloney made the request before the Court of Appeals' Sept. 17 decision overturning local ordinances in Bowie and Takoma Park that would have regulated cigarette vending machines.

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