Armed with a new legal opinion, Howard County Council members plan to test their mettle again next month against tobacco lobbyist Bruce C. Bereano.
They have put a resolution on their April docket that is virtually identical to one they backed away from March 7 when Mr. Bereano filed a $1.5 million suit against the council.
The resolution urges business owners to get rid of their cigarette vending machines, especially those that are accessible to minors. The only difference between this resolution and the one the council abandoned March 7 is that taverns are not included in the request.
Mr. Bereano contends the council has no right to enact such a resolution. He says will seek to persuade them of that at a public hearing April 18. If that proves unsuccessful, he will sue them again, he says, but with more vigor.
"They're irresponsible," Mr. Bereano said. "It's a real waste of the time and energies of the council to continue to engage in legislation where they have no jurisdiction."
Although the resolution merely encourages businesses other than taverns to remove cigarette vending machines, Mr. Bereano said it would not be interpreted as such. He said it is at best a "de facto restriction" and at worst, a "de facto ban."
In his earlier suit, filed on the day the council was to take action on the resolution, Mr. Bereano called the resolution an intentional and deliberate attempt to regulate trade in violation of state law.
He said the council is fully aware of the case he won before the Maryland Court of Appeals last September in which the court ruled that only the General Assembly could regulate cigarette vending machines.
Mr. Bereano said the current resolution, if enacted, will be an illegal interference in free trade because it will cause economic hardships for vending machine owners.
Council members say the resolution is appropriate in that it merely expresses the sense of the council.
"As public officials, we have the same free speech as anybody else," said Darrel Drown, R-2nd, chief sponsor of the resolution. "We can say anything we want to say about anything -- much less health issues affecting our citizens and especially minors."
Before the March 7 vote, council members were unprepared for Mr. Bereano's suit and did not learn the details until shortly before their meeting, Mr. Drown said. "We took the safe route," he said, and rewrote the resolution.
The new wording in the March 7 resolution called on the General Assembly to enact legislation that would allow local jurisdictions to regulate cigarette vending machines. The resolution also urged the state legislature to pass legislation keeping cigarette vending machines out of places frequented by minors.
Since the passing of that resolution, the council has received legal advice from the county solicitor and from the state attorney general indicating they are free to express themselves on any matter they choose.
"Annapolis came up short -- they didn't do the job. So we are going to do what we think is right," and sponsor a resolution indicating "the removal of tobacco product vending machines from public places is an important initiative needed to reduce the access of cigarettes to minors," Mr. Drown said.
Mr. Bereano says the council is getting "bad advice," and that he plans to sue the members personally and collectively for damages if the latest resolution passes.
Mr. Drown says he and co-sponsors Paul R. Farragut, D-4th; C. Vernon Gray, D-3rd; and Shane Pendergrass, D-1st, are aware of the threatened suit because Mr. Bereano put it in writing in a March 16 letter.
"We will not hesitate to pursue tort, antitrust, or other appropriate claims, including claims based on prior actions of the council and individual council members if there are any further improper efforts to restrain trade or interfere with my client's business relationships," Mr. Bereano said in his letter.
Mr. Drown said he cannot speak for his colleagues, but he does not intend to back off from the next skirmish with Mr. Bereano.
"I like a good fight," he said. "We have the right and the legal authority to speak."
The council will hold a public hearing on the resolution April 18 and is scheduled to vote on it May 2.