Tobacco lobbyist Bruce C. Bereano told a circuit court judge yesterday that the County Council acted improperly May 2 when it passed a resolution urging owners of county businesses other than taverns to get rid of their cigarette vending machines -- especially those easily accessible to minors.
Mr. Bereano asked Circuit Judge Dennis M. Sweeney to issue a summary judgment declaring the resolution invalid and awarding his client, Allied Vending Machines Inc. of Beltsville, $2 million -- $500,000 in compensatory damages and $1.5 million in punitive damages.
Government attorneys asked Judge Sweeney to dismiss the suit. They argued that the County Council is immune from suits even if members pass illegal legislation. The attorneys also argued that some of the legislation council members pass, including the vending machine resolution, is meaningless.
Mr. Bereano said the resolution is far from meaningless. It is instead, he said, "a deliberate, wanton, intentional act to skirt state law," which if unchecked, will be imitated by other jurisdictions in the state.
Howard County officials knew of Mr. Bereano's victory on behalf of Allied Vending in the Court of Appeals last September, yet "arrogantly tried to cut the cake another way," Mr. Bereano told Judge Sweeney yesterday.
Maryland's highest court agreed with Mr. Bereano that state government should "completely occupy the field of the sale of cigarettes through vending machines" and that "any local or municipal ordinances in this area [are] constitutionally invalid."
Senior County Assistant Solicitor Ruth Fahrmeier called Mr. Bereano's suit "outrageous," telling Judge Sweeney the court was "not here to give the council free advice."
She said the doctrine of legislative immunity allows the council to pass anything it wants -- even a bill contrary to state law -- without fear of being sued.
"You're saying there is no proper suit which could be brought?" Judge Sweeney asked. "Your position is that the council is free to do illegal actions [without fear of suit] -- is that your position?"
Ms. Fahrmeier said that if the council can pass illegal laws without fear of a suit, it can certainly pass a resolution expressing the opinion of its members without fear of a suit, she argued.
Further, "there is nothing negative in the resolution," she told Judge Sweeney. "It is meaningless in affecting people's rights."
"What I hear you saying is that no one takes this seriously -- it's just the County Council again," Judge Sweeney said.
Jack Schwartz, chief counsel for opinions and advice in the Maryland attorney general's office, joined the county in asking for a dismissal of the case on the grounds of legislative immunity and separation of powers in various branches of government.
"Legislative bodies at all levels have a right to express opinions," Mr. Schwartz said.
Judge Sweeney said: "What always concerns people is unchecked power. Suppose the council passes a libelous resolution saying a person is a crook and a thief. Is it right to say the council is totally immune?"
"Absolutely, your honor," Mr. Schwartz replied, "just as a an individual legislator has immunity. If somebody publishes the libel, there is no immunity there" for the person who publishes it.
Mr. Bereano told Judge Sweeney that the case has a very narrow focus. "This is not a resolution in general about grape boycotts or whether Jane Fonda can come into the state of Maryland," he said.
A resolution is legislation, he argued, and "it is irrefutable that municipalities have no authority to legislate in this field."
Mr. Bereano said Howard County has been "exceedingly active" in limiting smoking in public places. If the government suggests business owners get rid of their cigarette vending machines, most owners would comply because "they don't want a hassle" with liquor inspectors and other government regulators, he said.
"This resolution is far from meaningless," Mr. Bereano said. "It is not just a mere expression of opinion. It has subtle effects. It is not a mere academic exercise, but part of an effort to attack smoking and limit the sale of cigarettes."
Judge Sweeney told the parties after yesterday's 90-minute hearing that he will issue a decision soon. He has three options: make the summary judgment requested by Mr. Bereano, dismiss the case as requested by government attorneys or have the case go to trial.