Counties move to join cigarette sale lawsuit

August 03, 1994|By James M. Coram | James M. Coram,Sun Staff Writer

Eleven municipalities and Maryland's attorney general hope to join Howard County this morning in defending a $2 million suit brought against the county by a powerful tobacco lobbyist on behalf of a cigarette vending machine company.

Bruce C. Bereano wants Circuit Judge Dennis M. Sweeney to set aside a May 2 resolution approved by the council and award his client, Allied Vending Inc. of Beltsville, $500,000 in compensatory damages and $1.5 million in punitive damages.

The resolution "encourages" all county businesses except taverns to remove cigarette vending machines, especially those easily accessible to minors. The resolution also urges county residents to join the council in "commending and supporting" businesses that remove the machines.

Mr. Bereano says in his motion for injunctive relief that the resolution amounts to a "de facto ban" of cigarette machines and is an illegal restraint of trade because only the state can regulate cigarette vending machines.

Mr. Bereano wants Judge Sweeney to stop the county from "publicizing, publishing, posting or otherwise attempting to advocate compliance with the resolution" and to halt any other attempts "to eliminate cigarette vending machines from Howard County."

Ruth N. Fahrmeier, the lead attorney in the county defense of the suit, says in her response to Mr. Bereano that "the resolution at issue is a pure expression of opinion about a matter of importance to the Howard County Council."

State Attorney General J. Joseph Curran Jr. and lawyers representing 11 municipalities -- the city of Baltimore and Anne Arundel, Baltimore, Carroll, Charles, Garrett, Harford, Montgomery, Washington, Wicomico and Worcester counties -- see the suit as a chilling attempt to intimidate legislators.

"Local legislators are not unaware of the financial and personal implications of being sued or tied up in legal actions," the municipalities' attorneys say in their request to become a party to the suit. "The threat or specter of such suits could only have a serious chilling effect on the willingness of council members to speak their minds, to tackle controversial issues and to act independently."

Mr. Curran expressed similar views in his request. "The state has a vital interest in protecting the members of the General Assembly against similar intimidation," he said.

The question of whether Mr. Curran and the municipalities will be allowed to become a party to the suit is one of the first issues Judge Sweeney will be asked to resolve.

Mr. Bereano contends that the municipalities should be excluded from becoming a party to the suit because the state code does not give them that authority.

Ms. Fahrmeier says the code doesn't forbid it, either. "The matter simply is not addressed," she says in her brief.

Once the issue of standing is decided, Judge Sweeney will be asked to dismiss the case, as the county wants, or issue the partial summary judgment that Mr. Bereano wants.

In his motion for summary judgment, Mr. Bereano says it is county business owners, not council members, who are being intimidated. "Because [council members] cannot lawfully regulate, they attempt to trick and intimidate others," Mr. Bereano writes.

Although the resolution "purports to be voluntary, it is not. . . . Through coercion and intimidation, [the County Council seeks to] accomplish its objective by eliminating or at least reducing the number of vending cigarette machines in Howard County . . ."

The county contends that the resolution is merely an expression of opinion -- which is every legislator's right.

The resolution "creates no legal relationship, status, right or privilege," Ms. Fahrmeier says in her argument for dismissal. "The plaintiff refers to the resolution as a regulation but a resolution cannot be a regulation if it has no legal effect. . . . There can be no restraint of trade without a restraint."

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