Restaurants, bars evade smoking law Legal interpretations by Office of Law have led to exceptions

'Emasculating the statute'

Some establishments create enclosed areas where patrons smoke

November 14, 1996|By Craig Timberg | Craig Timberg,SUN STAFF

Months after Howard County's strict new anti-smoking law took effect, local bar and restaurant owners have discovered legal exceptions -- blessed by the county's Office of Law -- that let some diners continue to smoke.

The most common tactic is for restaurants to enclose several dining tables alongside a bar in a separately ventilated bar room -- about the only place restaurant patrons still can legally smoke in Howard.

But Bennigan's restaurant in Columbia's Town Center has taken that logic a step further, enclosing 14 tables in a "bar area" that includes no bar.

"It's clever," said F. Todd Taylor Jr., a senior assistant county solicitor. "It's creative."

It is also, he said, legal: "The law creates its own exception."

Taylor's decision to allow the Bennigan's bar area is the second time in six months he has given a controversial legal interpretation of the smoking law.

Each decision reversed a gain anti-smoking activists thought they had made.

And each prompted some activists to question whether the administration of County Executive Charles I. Ecker -- who vetoed the law in 1993 -- is serious about enforcing it.

"What you have are people who don't like the law and are perfectly willing to use any, even convoluted, interpretation to get around what the law intends," said John Banzhaf, executive director of Action on Smoking and Health, a Washington group. "It is emasculating the statute."

Peg Browning, an Ellicott City anti-smoking activist, said: "This does not make sense. This is totally against what we're trying to do. And it's not fair to other restaurants."

But Margaret Nelson, a spokeswoman for Bennigan's corporate office in Dallas, said the restaurant had worked with Howard County officials to comply with the law.

"As a business, we respect the preferences of both our smoking and nonsmoking guests," Nelson said, "and we want to create an atmosphere that accommodates both groups."

Law went into effect in July

The anti-smoking law -- one of the East Coast's toughest -- passed the County Council three years ago after a contentious legislative battle that lasted months and included two overrides of Ecker vetoes. It went into effect in July, with restaurants that have liquor licenses given a grace period until the end of the year to comply with its provisions.

With the law, smoking activists thought they had eliminated smoking in bars and restaurants, except in separately ventilated bar areas that are less than half the floor area of the establishments.

But this spring, shortly before the law finally took full effect, Taylor gave an interpretation of the law that virtually exempted bars. He said he was acting on his own without any prodding from Ecker or other top officials in Ecker's administration.

Within a bar, the law allowed a smoking area in "a smaller cocktail lounge or bar area." Anti-smoking activists said that meant that more than half the bar needed to be nonsmoking.

But Taylor said the smoking area needed to be smaller only than the bar itself -- meaning the nonsmoking area could be the size of a phone booth.

Some bar owners have used that interpretation to argue that their front foyers are their nonsmoking areas, with window air-conditioners or swinging doors serving as the ventilation.

Taylor's recent ruling on Bennigan's is less far-reaching but could set a precedent for restaurants with liquor licenses eager to return to smoking and nonsmoking sections. The law prohibits smoking entirely in the county's 220 restaurants without liquor licenses.

In those 90 restaurants with liquor licenses, the law allows smoking only in "the cocktail lounge or bar area which is separated from the restaurant dining area by a permanent floor-to-ceiling partition and is accessed by a door for ingress and egress and has a separate ventilation system."

Nowhere, said Taylor, does that definition say anything about a long bar counter, tall stools or bottles of liquor.

Definition called vague

He said the definition is so vague that restaurant owners who serve liquor could call entire dining areas the "bar area" -- except that the state anti-smoking law limits smoking areas to 40 percent of a restaurant's floor area.

"I've interpreted it the way I think a judge would interpret it," Taylor said.

But anti-smoking activists called his interpretation a stretch.

"It's ridiculous," said Al Ertel, co-chairman of the Coalition for Smoke Free Maryland Workplaces in Rockville.

County officials said that 17 restaurants in Howard legally allow smoking in some sort of bar area. These now include TGI Fridays in Columbia and The Crab Shanty, Bare Bones and Jilly's in Ellicott City.

Bars escape enforcement

But the county's 39 bars have largely escaped enforcement because of the exception Taylor found. And even those charged LTC with enforcing the new law are beginning to get confused.

"I've looked at this thing a thousand times," said David Hammerman, director of the county's Department of Inspections, Licenses and Permits. "It gets more complicated each time."

Pub Date: 11/14/96

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