Groups file suit to kill ban on smoking in bars, restaurants set for 2002

Montgomery council's vote to approve law called illegal `end-run'

May 20, 1999|By Candus Thomson | Candus Thomson,SUN STAFF

ROCKVILLE -- Making good on their threat, two lobbying groups filed suit yesterday in Montgomery County Circuit Court to overturn the toughest anti-smoking law in the region.

The suit claims the County Council acted illegally in March when it approved a ban on smoking in restaurants and bars that takes effect in 2002.

The challenge, being financed by the National Smokers Alliance, lists 200 plaintiffs: restaurant owners and managers, their employees, patrons and the Restaurant Association of Maryland.

The plaintiffs said the law could drive away up to 25 percent of their customers, who will go to Prince George's or Frederick counties or the District of Columbia, where laws are less strict.

"This isn't going to stop people from smoking they're just going to take their business elsewhere," said Brendan Flanagan, a lobbyist for the restaurant association.

Fred Rosenthal, owner of Jasper's Restaurant, said he "put on the back burner" plans to expand from his Prince George's County location to Germantown because of the ban.

"We are in the business of accommodating all of our customers, including those who smoke," said Rosenthal. "I resent any governmental agency [that] mandates what I should do for my customers."

The County Council approved the ban on a 5-4 vote, then a week later approved it as the Board of Health because health regulations cannot be vetoed by the county executive.

County Executive Douglas M. Duncan issued a symbolic veto three days later, saying he favored an approach similar to a law in Howard County, which allows smoking in separately vented and enclosed areas.

The lawsuit argues that when the council voted as the health board it acted illegally because it "made an end-run around the Executive branch and usurped the County Executive's authority to impose restraint upon the legislative power."

The 15-page lawsuit also questions the council's motives.

"This was enacted as a health measure, but it doesn't take effect for three years. That's like saying the drinking water supply is tainted, but it's too expensive to find an alternative source," said lawyer Robert Keene Jr. "It also does not protect the health of employees of private clubs."

But council President Isiah Leggett, a Howard University law professor, said opponents of the law "are just blowing smoke."

"I don't think any of their high-paid lobbyists or lawyers have read the [county] charter. What they are saying is, `We don't like what you've done.' That is not a legal argument," Leggett said.

At a news conference yesterday replete with fresh fruit and vegetable platters, bottled spring water and ashtrays, National Smokers Alliance President Thomas Humber said he would, if necessary, pay for the lawsuit "as far as it needs to be taken."

Humber bristled at questions about how much of the suit would be paid for by tobacco companies.

"I solicit it. I beg for it. I will apologize for none of it," he said.

Flanagan insisted that all of the plaintiffs "will be contributing something."

Restaurant and bar employees who are part of the suit say they don't need the council's protection from secondhand smoke.

"I choose to work in a smoke-filled environment," said Jennifer Blanchard, a bartender at J. J. Muldoons in Gaithersburg. "That's my choice."

Pub Date: 5/20/99

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