Lawsuit brought by vendor dismissed Resolution urged businesses to keep cigarettes from minors

March 31, 1996|By Caitlin Francke | Caitlin Francke,SUN STAFF

Saying the Howard County Council can speak out on matters of public health, a county judge has dismissed a lawsuit filed by a Beltsville vending firm after the council passed a resolution urging businesses to remove vending machines accessible to minors.

"When the state pre-empted the field of cigarette vending machine regulation, the state did not silence simultaneously the expression of opinion by county councils on this subject," wrote District Judge Dennis Sweeney in the March 20 opinion.

Current and former council members hailed the judge's decision in the case brought by Allied Vending Inc., which had sought $500,000 in compensatory damages and $1.5 million in punitive damages.

The resolution "was something we knew we had the authority to do," said Council Chairman Darrel Drown, a Republican who represents western Howard. "I think people are fed up with bully politics."

But Bruce Bereano, the attorney who represented the company as lobbyist for the tobacco industry, last week discounted such claims of victory.

"It's a nonevent," Mr. Bereano said. "They may be claiming it a victory, but what the resolution calls for has not been achieved."

In March 1994, Mr. Bereano had filed another suit as council members considered a resolution asking businesses to remove cigarette vending machines and the public to support those that did so.

Faced with that suit, members modified their stance and instead passed a resolution encouraging the General Assembly to pass legislation restricting the location of vending machines.

But after the state attorney general said council members were immune from lawsuits in approving such resolutions, members went ahead and passed the original draft.

In May 1994, the vending company sued Mr. Drown and former council members Paul Farragut and Shane Pendergrass, co-sponsors of the resolution. The suit claimed the resolution was a de facto ban on cigarette machines, which can be done only by the state.

In his opinion, Judge Sweeney agreed with the council's assertion that it was protected by legislative immunity because it was acting in a legitimate legislative capacity.

"Clearly as part of its legislative role, the Council may express its opinion on issues affecting the welfare and health of county residents through the passage of non-binding resolutions," Judge Sweeney said.

Council member Vernon Gray, a Third District Democrat and the chief architect of the county's anti-smoking legislation, said the council was vindicated by the opinion.

"Our responsibility as council members is to protect the health and safety of our residents," he said last week. "Cigarettes should be kept out of the hands of minors."

Pub Date: 3/31/96

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