Smoking law has loophole for bars Lack of minimum size allows them to make token compliance

County lawyer found error

Fines for violations to be delayed for six months

June 02, 1996|By Craig Timberg | Craig Timberg,SUN STAFF

Howard County's new anti-smoking law -- once hailed as among the East Coast's toughest -- has a critical loophole that would let a bar comply with no more than a smoke-free rest-room or phone booth.

The law, which also prohibits smoking in most restaurant areas, was passed three years ago with the intention of forcing county bars to keep more than half of their space smoke-free.

But a mistake in the law's wording accidentally eliminated the restrictions on the size of the nonsmoking area, meaning bar owners barely need to build one at all, according to an interpretation from the county's Office of Law.

That can be changed -- but only through action by the County Council, which is not eager to revisit the contentious issue, particularly after recent complaints about the law from bar and restaurant owners.

"If they want to have a totally smoked environment, you can have that," said Howard County Council Chairman Darrel E. Drown, an Ellicott City Republican who voted for the law three years ago.

Even so, lobbying by bar and restaurant owners worried about the law's economic impact has convinced county officials to hold off until Jan. 1 before issuing fines for violations of the new law, which takes effect in July.

"A lot of people have been in their ears," said Stan Nasiatka, who manages The Three Nines Tavern on Route 1 in Jessup. He said that county officials have changed their attitudes. "I don't want to say 'back off,' but they've kind of been more flexible."

The law, passed amid much contention in 1993, bans smoking in all public areas except overnight truck stops, tobacco shops and bars.

Restaurants that include bars will be allowed to permit smoking only inside an enclosed bar area with a separate ventilation system. Smoking will be totally prohibited in all other restaurants. Howard has 39 bars and 90 restaurants licensed to sell liquor.

Smoking restrictions are becoming more common around the country. Last year, Maryland passed a strict ban on smoking in the workplace that limited smoking in restaurants but exempted bars.

Howard County's law, though passed earlier, went further. It restricted smoking in bars -- a last bastion of public smoking in even the most restrictive states.

But two weeks ago, Todd Taylor, an attorney in the county's Office of Law, found the loophole that blunts that part of the law.

Even if the council had intended to keep a majority of each bar smoke free, the error makes that intention indefensible in court, he said.

"A nonsmoking area," Taylor said, "can be as small as you can make it."

County Executive Charles I. Ecker, who vetoed the legislation three years ago, is happy to keep the new, softened interpretation of the law. He said few bars would take advantage of the loophole by building only token areas for nonsmokers.

"I don't think the tavern owners will do that," Ecker said. "I think it will be roughly half [smoking] and half [nonsmoking]."

But Councilman C. Vernon Gray, the east Columbia Democrat who sponsored the bill, disputed the county lawyer's interpretation and promised to review the issue closely. "I'll have to take a look at that," he said. "Obviously, that was not, I think, the intent when it passed."

He may have support of a national anti-smoking group called Action on Smoking and Health. John Banzhaf, the group's executive director and a law professor at George Washington University, called the county's interpretation "crazy" and contrary the intent of the County Council.

He said that someone sensitive to smoke could sue both the county and a bar that did not build a nonsmoking area in keeping with the spirit of the law.

"You don't have to be a lawyer to say that sounds suspicious," Banzhaf said. "I can virtually assure you it will be challenged, and the [county] executive will have a lot of egg on his face, and maybe some liability."

Peg Browning, a 66-year-old Ellicott City woman who lost her larynx to cancer caused by smoking, said she was disappointed by both the loophole and the six-month moratorium on fines for bars and restaurants in violation.

"They waited to the last minute to come crying," Browning said. "They don't care about people. They only care about the dollar."

Bar and restaurant owners, however, complained that the law would push some of them out of business because of lost patrons and construction costs.

Last month, Bill Harrison, president of the Howard County Licensed Beverage Association, met with Ecker and several county council members in hopes of overturning, softening or delaying the new law.

After those meetings, county officials decided to issue no fines for six months after the law takes effect July 1.

The loophole found by the county attorney in recent weeks came as a surprise to local bar owners.

When told about the county's interpretation on the size of the nonsmoking area, Nasiatka said he might designate one-quarter one-third of his bar as nonsmoking. He applauded the new interpretation.

L "In my mind, that's a pretty big compromise," Nasiatka said.

Said Harrison: "Oh, geez, no kidding. What a rule."

Pub Date: 6/02/96

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