Next task: enforcing smoke ban

City officials must grapple with law's exemption language

March 01, 2007|By John Fritze | John Fritze,sun reporter

Baltimore's smoking ban cleared a major political hurdle when it was approved by the City Council this week, but attention is now shifting to the city Health Department, which must grapple with enforcement of the law, as well as a potentially touchy loophole.

Signed by Mayor Sheila Dixon yesterday, the smoking ban carries a loosely written provision that allows bars to seek a waiver from the Health Department if complying with its prohibitions would cause "undue financial hardship" - purposely vague language that will need to be defined in the coming months.

Advocates note that the city has months to develop the criteria under which bars and taverns can apply for a waiver - and the provision may be moot if the General Assembly approves a statewide ban - but bar owners are examining the law's exemption language as a possible escape clause.

"It's a great idea in concept, but I'm not sure the city is going to be prepared for the number of applications it's going to receive" for waivers, said Frank D. Boston III, a lobbyist for the Baltimore Licensed Beverage Association and other hospitality groups. "It's going to require a lot of time of the Health Department."

Dr. Joshua Sharfstein, the city's health commissioner, predicted that the process of establishing the waiver rules will take several months, and he vowed to hold several hearings to seek public input.

Baltimore's ban will take effect Jan. 1 after the City Council approved the measure at its Monday meeting on a 9-2 vote with three abstentions. Baltimore will join Montgomery, Prince George's, Howard and Talbot counties in banning smoking in bars and taverns. Gov. Martin O'Malley said he would back a statewide ban, and support for legislation pending in the Assembly appears to be growing.

Flanked by anti-smoking advocates and members of the City Council who voted for the ban, Dixon signed the bill into law at a City Hall ceremony yesterday and said her administration will set aside $100,000 for tobacco cessation. The money will pay for nicotine gum and patches for city residents who do not have health insurance.

"The City Council has decided that no worker should have to choose between health and employment," Dixon said. "Reducing our exposure to secondhand smoke means less heart disease, less lung disease and fewer premature births."

The city's law prohibits smoking in all public places, including bars and restaurants, bowling alleys and taxicabs. Private clubs and bars that derive 50 percent or more of their revenue from noncigarette tobacco products - namely, cigars - are exempted.

The city's waiver provision permits the health commissioner to grant exemptions on a case-by-case basis if compliance would cause the business financial hardship or if "other factors exist that would render compliance unreasonable." The Health Department is charged with defining those criteria, reviewing exemption applications and enforcing the ban.

Sharfstein said Baltimore has about 15 health inspectors who scrutinize restaurants and bars for code violations, but he expects most businesses will comply on their own. Business owners who violate the ban will face a $500 fine per violation.

"In general, these laws don't require a tremendous amount of enforcement," he said.

A supporter of the ban, Sharfstein said health departments in other cities have successfully navigated similar waiver provisions.

"We're committed to it being a fair and transparent process. We want to do it based on input that we get from the public and scientific evidence," he said. "Overwhelmingly, these laws turn out not to create a big problem for people. But we'll take it one step at a time."

New York state's smoking ban allows businesses to apply for waivers but leaves it up to local health departments to review applications. New York City has granted seven waivers - mainly to cigar bars - a spokeswoman said. Dozens of bars have recently applied for waivers in Philadelphia and Pittsburgh, news reports said.

New York's waiver provision prompted a federal lawsuit filed by a restaurant association that argued its guidelines were too vague and that they were applied unevenly. A District Court judge ruled against the businesses last spring.

The statewide smoking-ban legislation pending in Annapolis does not contain waiver provisions.

City Councilman Robert W. Curran, lead sponsor of the smoking ban, predicted businesses will have a difficult time proving sales have been affected by the ban - something he said can be documented with sales tax receipts.

"In most of the places, business will go up, so you can't claim a hardship," Curran said. "That's the good thing about this. When people figure it out, it becomes part of the social norm."

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