Smoking ban hearings start today

August 11, 1994|By Marina Sarris | Marina Sarris,Sun Staff Writer

Lawyers for tobacco manufacturers and state regulators will square off in a rural Maryland courthouse today in a case with national implications for the anti-smoking movement.

A coalition of tobacco and business groups will ask a Talbot County judge to continue to block the state's proposed workplace smoking ban until after its legality is settled once and for all -- a process that could take months.

"If we win this, we would hope and expect other states would pause long and hard before going ahead with their own [workplace smoking] regulations," said George A. Nilson, the Baltimore lawyer for tobacco companies, local businesses and trade groups opposing the Maryland ban.

The ban, which state regulators sought to impose Aug. 1, already has been stalled until the end of hearings scheduled for today and tomorrow.

Maryland officials want permission to begin immediate enforcement of the ban, the toughest workplace smoking regulation in the nation. It seeks to ban smoking in almost all indoor workplaces, including restaurants, bars and hotels.

If the state prevails, the ban could take effect as soon as tomorrow evening. Violators, however, are unlikely to be fined for some time as state officials seek to educate businesses about the new rule.

The case is important because its outcome could influence other states that are considering using occupational safety and health regulations to ban workplace smoking, as Maryland has done.

The tobacco industry has a "reasonable concern" about other states following Maryland's example if the state wins the court case, said Thomas Lauria of the Tobacco Institute in Washington. A win by the tobacco companies, on the other hand, could discourage similar anti-smoking efforts, Mr. Nilson said.

Today's hearing in Talbot County will focus more on the ban's effect on Maryland businesses than on tobacco companies located elsewhere, he said.

Mr. Nilson said he will call about a dozen witnesses, including Talbot bar and restaurant owners who will say how their businesses will be hurt if they must ban smoking.

One potential witness, Ronald Fox, an owner of the Washington Street Pub in Easton, said the ban would "probably" put his restaurant and bar out of business. "The government has just got to stay out of our face. They're making it awfully hard for the little guy, and it just doesn't stop," Mr. Fox said.

Mr. Nilson said other witnesses will discuss the ban's negative effect on hotel and convention business.

The regulation does allow businesses owners to install separately ventilated smoking lounges, but an architect will testify about the difficulty, time and cost involved in doing so, Mr. Nilson said.

The state's lawyers, meanwhile, will try to undercut the businesses' claims of economic harm while focusing on the health risks faced by workers who breathe second-hand smoke.

A federal study has linked second-hand smoke to cancer, heart attacks and lung ailments in nonsmokers.

"Whatever harm [the businesses] have -- and we dispute any economic harm -- that has to pale in comparison to the harm caused by exposure to second-hand tobacco smoke," said Andrew H. Baida, a lawyer for the state.

"Our position will be it's in the public interest not to expose people to a significant risk of cancer," the assistant attorney general said.

Talbot Circuit Judge William S. Horne will not hear all the pros and cons of the regulation this week, but his ruling will provide a clue as to how he might ultimately decide the case at a full hearing on the issues later.

In determining whether to continue delaying the ban temporarily, Judge Horne is supposed to consider the likelihood of the tobacco companies and businesses ultimately overturning the ban.

Neither side would predict how or when Judge Horne would rule. He technically could wait until Monday to decide because that is when his earlier injunction expires.

Several local legal experts declined to speculate, too, saying it would be difficult to make any prediction since the issue is so new. Maryland is the first state to try to enforce such a regulation.

Washington state has adopted a similar regulation, but it isn't scheduled to take effect until Sept 1. Washington also faces a legal challenge by tobacco companies and businesses at a hearing Aug. 31, according to an attorney involved in that suit.

The federal government has proposed a ban quite similar to Maryland's, but it is not expected to become final before late next year.

It could take even longer than that. Mr. Lauria of the Tobacco Institute said the federal Occupational Safety and Health Administration can take up to 10 years to adopt a regulation.

In the meantime, any regulations adopted by states are likely to be watched closely by both sides of the smoking debate.

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