A TALE OF THREE COUNTIES
A Legal Meta-Analysis of Local Clean
Indoor Air Laws in Maryland
By: Jeremy
Rachlin
Student, University of Maryland School of Law
jrachlin@hotmail.com
Abstract
Since the
ground-breaking 1992 EPA Report identifying secondhand smoke as a “Class A
carcinogen,” a finding so damning that the tobacco industry challenged the
authority of the EPA to issue such a finding, legislative efforts at local and
state levels have been underway to limit public exposure to secondhand smoke. One of the most effective ways to limit
exposure to secondhand smoke is for local governments to pass laws restricting
smoking in public bars and restaurants.
These laws protect both the health of employees in bars and restaurants,
as well as the rights of nonsmokers who prefer not to be exposed to secondhand
smoke. By January 2005, 105
jurisdictions had passed laws completely prohibiting smoking in workplaces,
bars, and restaurants.
In
the State of Maryland, three
counties have passed clean indoor air laws restricting smoking in public bars
and restaurants. For as different as
these three counties may be demographically, each has passed a law that serves
a common goal. Montgomery
County and Talbot
County passed laws which completely
prohibit smoking in all public bars and restaurants. Howard
County passed a law that restricted
smoking, but still allowed smoking in separately-ventilated areas of bars and
restaurants. An analysis of the text of
each of these three laws, as well as the process by which each of these laws
was passed is extremely instructive to jurisdictions who aspire to pass their
own clean-indoor air laws.
First,
this paper notes the different structures of local governments within the State
of Maryland, for the structure of
a local government may influence the strategy that the legislative body takes
in passing such a law. For example,
“charter counties” in Maryland,
such as Talbot, Howard, and Montgomery
Counties, have expressly enumerated
powers under the Maryland Constitution, and may be ruled by both a legislative
and an executive branch, potentially making it more difficult to pass a law
through two branches of government that is within the legislature’s enumerated
powers. However, other counties in Maryland
are ruled by “municipal corporations,” which have more latitude in the types of
laws they pass, and only must pass a law through a legislative branch with no
executive check. Thus, it is important
for any jurisdiction who aspires to pass a clean indoor air law to examine the
authority granted to that particular jurisdiction to pass such a law.
Next,
the paper presents an overview of the passage of each of the three pieces of Maryland
legislation. Each jurisdiction faced
different types of obstacles in the legislative process. The passage of Howard county’s law was
stalled by a schism between the County Council and the County
Executive, and was slowed by
efforts from the tobacco lobby.
Additionally, poor drafting of statutory language has since undermined
the legislative intent of the Howard law.
Montgomery County’s
initial attempt at passing a clean indoor air law was struck down by the
Maryland Court of Appeals. In addition
to judicial challenges, Montgomery County
faced inordinately stringent efforts from the tobacco lobby determined to sink
the ultimately successful passage of a second law, going so far as engaging in
a smear campaign against a county legislator.
Talbot County,
despite being located in a part of the state where tobacco had long been a
staple of the economy, faced the least challenge to passage of their clean
indoor air bill. However, last-minute
legislative posturing threatened the passage of the Talbot law, as well.
An
analysis section concludes the paper.
This analysis is essentially a meta-analysis of the three laws, forming
a body of advice for future lawmakers who can learn from the experiences of the
passage of the three Maryland
laws. This meta-analysis is based upon
an examination of the legislative processes of the three counties, as well as
an examination of the text of the laws themselves.
The
analysis section first discusses how a legislative body can create a
“challenge-proof” law such that the law would withstand judicial scrutiny. A preamble to the bill containing a
legislative statement of intent, can demonstrate a rational basis for the law,
necessary for the law to survive a challenge brought under the 14th
Amendment Equal Protection or Due Process Clauses. Precise statutory language is important, as
the experience of Howard County
demonstrates that a carelessly drafted law can actually allow smoking to
continue in bars and restaurants de facto, despite the passage of a law
purporting to restrict such smoking.
Recognition of preemption issues is important, as each of the three county
legislatures in Maryland had to
take care not to contravene Maryland
state law with the terms of their local laws.
Finally, severability clauses within the law are integral, as such a
clause could allow the key provisions of the law to stand if the tobacco lobby
ever was successful in posing a judicial challenge to the law.
The
analysis section next discusses how a legislative body can engage in behavior
to make the passage of the law “lobby-proof.”
Legislators must “play politics” before introducing the law, ensuring
that all of the necessary votes are in place and that there is agreement
between the legislative and executive branches, if necessary. Otherwise, at best, public embarrassment
might ensue; at worst, passage of the law might be delayed or cancelled. Legislators must also be aware of the
economic arguments that will be made by both supporters and opponents of the
law, so that they can determine for themselves whether the law actually spells
doom for bars and restaurants, or whether the tobacco lobby paints a grimmer
picture than reality.
Local
legislatures who aspire to pass clean indoor air laws will undoubtedly face
challenges, and this meta-analysis of the three laws and the experiences in
passing such laws, will be instructive for legislators in other
jurisdictions. Passage of clean indoor
air laws is highly beneficial, protecting the health of employees, and ensuring
the comfort of the majority of Americans who choose not to smoke.
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This
is a story about three Maryland
counties. All vary greatly in
population, with the 2003 population in one county just over 250,000 residents,
the population in the second county just shy of one million residents, and the
population in the third county just over 30,000 residents. Two of the counties are suburban and rather
densely populated with 983 and 1,760 persons per square mile respectively,
while the third county is mostly rural, with only 125 persons per square mile. The economics in the three counties are
different, as the 1999 median household income in two of the counties
approached $75,000, while in the third county, the median household income was
just over $43,500. Education levels amongst residents of the three
counties vary, as over 50% of residents of two of the counties have a
bachelor’s degree or higher, whereas in the third county, only 27.8% of
residents have a bachelor’s degree. Yet for the many things that may distinguish
Howard, Montgomery, and Talbot counties from one another, these three Maryland
counties have one thing in common. Each
of these counties has taken dramatic steps to improve the public health of
their residents and workforce, passing stringent clean indoor air laws, either
totally banning, or constructively banning smoking from all public bars and
restaurants.
This
paper will first present the context in which each of these counties acted,
discussing the scientifically proven dangers of secondhand smoke and initial attempts
in Maryland to pass statewide
clean indoor air laws banning smoking in bars and restaurants. Next, this paper will describe the
constitutional source of authority for local governments in Maryland
to pass their own clean indoor air laws.
This paper will next describe the process by which each county passed
their legislation and the obstacles which each County Council encountered when
doing so. Finally, this paper will synthesize
the three legislative histories, and identify crucial factors of which
lawmakers who wish to pass clean indoor air laws in their own jurisdictions
should beware.
I. Mounting
Evidence as to the Dangers of Secondhand Smoke Leads To An Unsuccessful
Statewide Regulatory Effort in Maryland to Ban Smoking in Bars and Restaurants
In 1992, the U.S.
Environmental Protection Agency (EPA) issued a groundbreaking, controversial,
and eye-opening account of the dangers of secondhand smoke. The EPA concluded that secondhand smoke is a
“Class A” carcinogen, “responsible for approximately 3,000 lung cancer deaths
annually in U.S. non-smokers,” and responsible for reduced respiratory health
of other non-smoking adults. The EPA also concluded that secondhand smoke
bears significant health risks for exposed children, increasing the risk of
bronchitis, pneumonia, and asthma.
In
the wake of the 1992 EPA report, numerous other agencies have conducted studies
and reported on the dangers of secondhand smoke. In addition to the EPA report attributing
3,000 lung cancer deaths annually to secondhand smoke, the National Cancer
Institute estimates that exposure to secondhand smoke is responsible for 35,000
American deaths from heart disease each year and 1,900 infant deaths each year from
Sudden Infant Death Syndrome. Secondhand smoke presents particularly grave
risks to young children. Exposure to
secondhand smoke results in the hospitalization of between 7,500 and 15,000
children under 18 months of age each year for lower respiratory tract
infections. Young children are not the only ones who
suffer due to secondhand smoke exposure.
Among healthy, non-smoking adults, exposure to secondhand smoke has been
found to substantially reduce coronary circulation, leading to a greater risk
of cardiac problems.
Secondhand smoke
is a veritable chemical stew. There are
over 4,000 chemical compounds in secondhand smoke, 200 of which are poisonous
to humans, and fifty of which have been identified as known or probable human
carcinogens. The scientific data is clear that secondhand
smoke is an inherently dangerous byproduct of tobacco products, resulting in
increased sickness and death amongst Americans who are exposed.
As the scientific
proof of the dangers of secondhand smoke reached the public consciousness in
the early 1990s, anti-tobacco advocates gained momentum in their movement to
ban smoking in all public places, including restaurants and bars. Anti-tobacco advocates lobbied local
governments for more stringent clean indoor air laws, arguing that by further
reducing secondhand smoke exposure, public health would be improved. In 1993, the first law in the United
States banning smoking in bars and restaurants was passed
in Davis, California. By 1998, 11 jurisdictions had passed such
ordinances.
In 1994, the
Maryland Division of Labor and Employment took action, passing a regulation
banning smoking in all indoor workplaces, including bars and restaurants. The authority of the state regulatory agency
to pass such a regulation was explicitly recognized by Maryland’s
highest court. However, after judicial recognition of the
validity of the regulation, the Maryland General Assembly intervened,
pre-empting the regulation with a law specifically permitting smoking in bars
and restaurants.
In
1994, The Commissioner of the Maryland Division of Labor and Employment purported
to "ensure that in an enclosed workplace there is no smoking." Therefore, the agency passed a regulation
banning smoking in all indoor workplaces. An "enclosed workplace" was defined
as "an indoor place of employment" and included restaurants, bars,
and taverns. However, the caveat to this regulation was
that employers could permit smoking in a designated smoking area within an
enclosed workplace, so long as the designated smoking area was completely
separated from the non-smoking area. The
designated smoking area had to be separated from the rest of the establishment
by solid floor-to-ceiling walls, a closeable door, and a separate ventilation
system that did not re-circulate air from the smoking area to the non-smoking
area. In addition, the regulations stipulated that
this designated smoking area could not be located in an area where any employee
was required to work, demonstrating that the goal of the regulation was protecting
the health of employees in all state workplaces, public and private. The regulation was to take effect August 1, 1994.
Needless
to say, this impending regulation was troublesome to many business owners,
particularly bar and restaurant owners who now faced a mandate of banning
smoking in their establishments except for separately ventilated areas. Even if these owners created separate smoking
areas, the locations of these areas were severely restricted, as bar and
restaurant employees are frequently required to traverse the entire space of
the establishment, and the smoking area could not be located in an area where
any employee was required to work. In the face of this impending regulation, a
group of Talbot County
businesses and trade associations, supported by several tobacco companies,
sought a judicial remedy in the form of an injunction declaring the regulation
"void, invalid, and unenforceable."
The
Talbot County Circuit Court granted plaintiffs' motion for a temporary
injunction, holding that plaintiffs had met their burden of demonstrating their
entitlement to interlocutory relief. The Maryland Court of Appeals granted
certiorari prior to consideration of the case by Maryland's
intermediate appellate court (Maryland Court of Special Appeals). The plaintiffs made a number of arguments to
the Court of Appeals to support of a ruling of unenforceability, including
that: 1) the Division of Labor and Employment exceeded their statutory
authority in passing such a regulation; 2) the regulation unduly burdened
interstate commerce; 3) the regulation was void because the Maryland regulatory
agency had failed to gain approval from the federal Occupational Safety and
Health Administration; 4) the regulation violated plaintiffs’ First Amendment
right to privacy, and; 5) the regulation violated plaintiffs’ First Amendment
free speech rights. The Court noted that the
"well-accepted" standard for upholding a temporary injunction was
whether there was likelihood for success on the merits of the case. Holding that there was "virtually no
likelihood of success" on the merits of the case, the Court of Appeals
struck down the temporary injunction, ruling that the regulation would become
effective 30 days from the filing of their opinion, unless stayed by either the
Executive Branch or the lower courts after a full trial on the merits of the
case.
Instead
of the executive branch or the judicial branch granting a stay of the
injunction, the legislative branch of the Maryland
state government took action, using their legislative power to preempt the
regulation as applied to bars and restaurants.
While the regulation by the Maryland State Division of Labor and
Employment purported to ban smoking in bars and restaurants except for
separately ventilated areas, the Maryland General Assembly, in 1995, passed a
bill explicitly allowing smoking in bars, taverns, and other establishments
that possess an alcoholic beverages license. In addition, under the legislation, all
restaurants may permit smoking, regardless of whether they have a liquor
license. Restaurants that do not possess
a liquor license can maintain a separate enclosed smoking area, not to exceed
40% of the total area of the restaurant. Restaurants that do possess a liquor license
may permit smoking in either a separate enclosed smoking area, or a bar area,
not to exceed 40% of the total area of the restaurant. However, unlike the regulation which listed
strict characteristics of the separate smoking area in an attempt to protect
non-smokers, the Maryland law
explicitly states that a separate enclosed room in which smoking is permitted
"is not required to have a specially modified ventilation system for the
room." Thus, the Maryland
law completely defeats the purpose of the state regulation passed the previous
year, returning to bar and restaurant owners the right to permit smoking in
their establishments.
The
Maryland law does not require
that all bars and restaurants allow smoking, instead specifically granting bar
and restaurant owners the right to "restrict or prohibit smoking on the
premises." In addition, uncodified language accompanying
the Maryland law leaves open the
possibility for local governments to pass their own laws restricting smoking in
bars and restaurants. The drafters of the law noted that the law
"is not intended to preempt the authority of a county or municipal
corporation to enact any law or ordinance that is more restrictive of smoking
in establishments open to the public…." Thus, the door was left open for local
governments within the state of Maryland to pass their own clean indoor air
laws, restricting smoking in bars and restaurants.
II.
The Sources of Authority for Local Governments In Maryland to
Pass Clean Indoor Air Laws
The
23 counties and 156 municipalities within the state of Maryland
(not including Baltimore City
which has its own city government), have one of four types of government:
Charter Home Rule, Code Home Rule, rule by County
Commissioner, or Municipal Home
Rule. Each of these types of government passes
legislation differently and draws its power from different sources within the
Maryland Constitution.
If
20% of registered voters of any city or county approve a petition to appoint
members of a charter board, and 50% of registered voters approve a charter
prepared by this charter board, the jurisdiction adopts Charter Home Rule. The lawmaking authority in charter counties
is vested in a County Council, who may enact and repeal local laws and
regulations. The County Council of a charter county may
not exercise law-making authority unless and until enabling legislation is
passed by the Maryland General Assembly. The laws and regulations that the County
Council of a charter county enacts are limited to powers expressly granted to
charter counties by the Maryland General Assembly. These enumerated express powers are very
broad, however, including such things as the right to tax, create election
districts, establish and maintain county hospitals, courthouses, jails, and
other institutions, and the right to organize a county board of health. While legislatures in charter counties may
pass laws in a variety of areas, unlike in other forms of local government,
legislatures in charter counties are limited even when legislating in an area
within their express power, as the General Assembly retains the right to trump
any piece of local legislation.
If
two-thirds of the governing body of a county, accompanied a majority of
registered voters in that jurisdiction approve of a measure to become a code
county, that jurisdiction adopts Code Home Rule. The legislative powers of Code Home Rule
counties rests with a board of county commissioners who may enact, amend, or
repeal public local laws. The legislative powers of jurisdictions that
adopt Code Home Rule are limited to the same enumerated express powers from the
Maryland General Assembly as Charter Home Rule jurisdictions. However, an important difference between the
two types of governments is that Code Home Rule Counties possess a
self-executing grant of local legislative authority without the need for enabling
legislation that empowers Charter Home Rule jurisdictions.
In
nine Maryland jurisdictions, power rests with elected County
Commissioners. The Maryland General Assembly expressly
enumerates powers to the County Commissioners
of these counties. However, seven of the nine counties are
excepted from many of the expressly enumerated powers, giving the County
Commissioners in those
jurisdictions more latitude in passing legislation than the legislative
branches of Charter or Code counties may have. In addition to passing laws, County
Commissioners are empowered to pass
ordinances and other resolutions.
Finally,
the 156 municipalities within the State of Maryland
enjoy home rule via a municipal corporation, which is vested with the power to
amend, enact, or repeal local laws relating to the "incorporation,
organization, government, or affairs of said municipal corporation." The lawmaking arm of municipal corporations
is a legislative body elected by registered voters within the municipality. In addition to expressly enumerated powers
granted by the Maryland General Assembly, the legislative body of a
municipality has the general power to pass all laws to assure good government,
secure persons and property, preserve peace, and protect the health and comfort
of its citizens, so long as the law does not conflict with the Maryland State
Constitution or contravene the expressly enumerated powers. The General Assembly is generally precluded
from interfering with a municipality's lawmaking, as it may not constitutionally
pass a special or local law relating specifically to any particular
municipality.
Howard,
Montgomery, and Talbot
Counties all retain Charter Home
Rule. In Howard
County, the legislative power is
vested in a County Council consisting of five elected council members. In Montgomery
County, the legislative power is
vested in a County Council consisting of nine elected members, one elected from
each of five Council districts within the county, and four at-large council
members elected by voters from the entire County. In Talbot
County, the legislative power is
vested in a County Council consisting of five elected council members.
When
the Maryland General Assembly passed their 1995 law allowing smoking in bars
and restaurants, recall that they included specific anti-preemption language
allowing counties and municipal corporations to enact their own, more
stringent, clean indoor air laws in bars and restaurants. Charter Home Rule Counties are specifically
empowered by the Maryland General Assembly to pass laws in the interest of
public health "to prevent, abate and remove nuisances," and to
provide for the enforcement of these laws via civil and criminal penalties. Therefore, the County Councils of Howard, Montgomery,
and Talbot Counties
have the legislative power, explicitly enumerated to them by the Maryland
General Assembly, pursuant to the Maryland State Constitution, to enact their
own clean indoor air laws banning smoking in bars and restaurants. The thrust of growing scientific findings as
to the dangers of secondhand smoke supported such a movement.
III. Howard County:
Breaking Ground With a Law That Because of Substantial Flaws in Statutory
Language, Failed to Achieve Legislative Intent
Howard
County, a largely suburban county just outside
of Baltimore, took the lead in extending Maryland’s
indoor smoking prohibition, endeavoring to pass a bill that would ban smoking
in most restaurants and bars. At the
time the Howard County Council drafted their legislation, they were the only
jurisdiction on the East Coast, and one of only a handful of jurisdictions
nationwide, outside of California,
to draft such a comprehensive ban. The County Council was spurred to action by
the January 1992 Environmental Protection Agency (EPA) report which noted that
3,000 non-smokers die each year from exposure to secondhand smoke, classifying
secondhand smoke as a Group A carcinogen, with the same lethal qualities as
chemicals such as arsenic and radon.
The
first draft of the Howard County
legislation originally banned smoking in restaurants, but placed no
restrictions on smoking in bars. However, one council member amended the law so
that smoking would still be allowed in the bar areas of restaurants so long as
the bar area was enclosed and had a separate ventilation system. The Council passed this amended bill by a 4-1
vote, meaning that even if the County
Executive were to veto the bill,
the Council would have the necessary four votes to override the veto.
Indeed,
the County Executive
did veto the bill. The County Executive
vetoed the bill for three primary reasons: 1) ambiguous statutory language; 2)
concern over the economic vitality of Howard
County bars and restaurants, and;
3) opposition to a "smokers' rights amendment" that the tobacco lobby
had successfully attached to the bill just before its passage.
From
the start, the County Executive
and the County Council disagreed on the meaning of the word “bar,” and it seems
that one of the reasons the County Executive
vetoed the bill was because he wanted to ensure that fewer establishments could
be considered a “bar” and thus could continue to allow smoking. The County
Executive was concerned because
under the terms of the bill, a “bar” could continue to allow indoor smoking, and
as such over one-third of county restaurants would not be covered by the ban
because they were considered a “bar.” There was nothing in the original statutory
language defining what exactly distinguished a bar which served food, and would
be exempt from the ban, from a restaurant, which would be subject to the
ban. However, the County Council
disagreed with the Executive’s interpretation of the bill, arguing that any
establishment that earned over 50% of its revenue from food sales would be
considered a restaurant, and thus subject to the terms of the indoor smoking
ban.
The
County Executive
also had strong concerns regarding whether Howard
County bars and restaurants could
remain competitive in the face of such a law. When the bill was passed, it was not to go
into force for three years from the date it was enacted, leaving time for the
Maryland General Assembly to consider and pass a similarly stringent clean
indoor air law. The County Executive
was concerned that if Maryland did not pass such a statewide
law during that three-year span, Howard
County restaurants and bars would
lose significant business to restaurants and bars in bordering jurisdictions
where smoking was still permitted. Indeed, the Maryland Division of Labor and
Employment did enact a regulation purporting to ban smoking statewide in bars
and restaurants in 1994, but was essentially overruled by the Maryland General
Assembly in 1995, who exempted bars and restaurants from the statewide smoking
regulation.
Finally,
the County Executive
was opposed to a “smokers’ rights amendment” that had been tacked to the bill
by noted tobacco lobbyist Bruce Bereano. This amendment would make it illegal for
employers to fire or refuse to hire people who smoke away from the job,
essentially creating a protected class of employees who were smokers. Numerous groups were very alarmed by the
amendment and informed the County Council of their concerns. The Maryland Division of the American Cancer
Society urged the council to reject any bill that included such an amendment. Lawyers pointed out the possibility that
smokers could file frivolous lawsuits, claiming that their firing or
unemployment was based on the fact that they smoked, leaving the burden on
employers to prove that they had fired a smoker for job-related reasons. While it seems unlikely at first blush that a
fired employee might think to bring a wrongful-discharge suit against their
employer on these grounds, the tobacco lobby would likely support at least one
employee in such a suit in order to shed light on the amendment and further
cast smokers in the role of the pariah.
When
the Howard County Council reconvened, despite their earlier expectation that
they had the requisite votes to override the County
Executive’s veto, they were unable
to do so. One of the four council
members who had originally voted for the bill, and whose vote was necessary to
override the veto, was ill and could not be present at the Council meeting
where the override vote took place. Unable to override the veto of the first
bill, and in the face of heavy opposition to the smokers’ rights amendment, the
County Council decided to hold hearings on a new bill that would not only be
void of the smokers’ rights amendment, but would also more clearly delineate which
types of establishments could continue to permit smoking and under what
conditions they could do so.
On
September 20, 1993, the
Howard County Council, overriding another veto of the County
Executive over this second draft of
the Clean Indoor Air Act, passed an indoor smoking ban as part of the Act that
would go into effect on July 1, 1996. Despite earlier sentiments that he would
support a new bill absent the smokers’ rights amendment, the County
Executive vetoed this law because
he feared unfair competition between restaurants that could afford to provide
and construct a separately ventilated smoking area, and those that could not. Under the Act, the only smoking still allowed
in restaurants or bars is in self-enclosed, separately ventilated areas. The law bans smoking in all restaurants
without a liquor license. Immediately upon passage of the bill, the
tobacco lobby threatened to sue the county on the basis that their actions were
preempted by state legislative powers, and a petition drive was considered whereby
the bill would be brought to referendum.
The
Howard County
bill, titled, the “Howard County Indoor Clean Air Act,” begins with a clear
statement of findings and purpose, noting that, “The Howard County Council
finds and declares that tobacco smoke is a hazard to the health of the general
public.” The Council annunciates two purposes for the
Indoor Clean Air Act, stating: 1) that the prohibition of smoking tobacco
products in public places except in designated smoking areas will protect the
public health, comfort, and environment, and; 2) that by providing smokers separate
areas, nonsmokers will be protected from involuntary exposure to smoke from
tobacco products. The County Council explicitly notes that when
the needs of nonsmokers to frequent smoke-free establishments and the needs of
establishments to protect business by accommodating individuals who smoke conflict,
“steps to provide smoke-free air shall have priority.”
The
Howard County Indoor Clean Air Act makes it “unlawful for any person to smoke
in any public place… in Howard County….” Smoking is defined as, “smoking or carrying a
lighted cigar, cigarette, pipe of any kind, or any lighted tobacco or lighting
a cigar, cigarette, pipe of any kind, or tobacco of any kind. Included within the list of public places
where smoking is prohibited are restaurants and bars. The County Council went to great lengths in
the bill to ensure that just about all eating and drinking establishments fall
within the statutory definitions of restaurants and bars. A restaurant, under the bill, includes
catering facilities, any “eating establishment which gives or offers for sale
food to the public, guests, patrons, or employees,” and restaurants which
purport to change in character because “after a certain hour or upon certain
temporary conditions, meals cease to be served.” Bars are defined as “an establishment, or portion of an establishment, which is
devoted to the serving of alcoholic beverages for consumption by individuals on
the premises,” and also includes cocktail lounges and any establishment where
“the serving of food is only incidental to the consumption of alcoholic
beverages” (emphasis added). Thus, smoking is prohibited in restaurants as
a whole, including restaurants where a portion of the floor space is devoted to
a bar area, unless this bar area of the restaurant is permanently enclosed and
separately-ventilated.
There
are a few important exceptions to the smoking prohibitions included in the
Indoor Clean Air Act. While not
explicitly exempting private clubs from the Act, the Act only applies to a
“public place,” defined as, “[a]ny enclosed, indoor area which is open to or
used by the general public….” Therefore, private clubs do not fit the
definition of a public place where smoking is banned under the Act. In addition, where an entire room or banquet
hall is used for an invitation-only private social function and where seating
arrangements are under the control of the sponsor of the event, smoking is allowed. The most important exception to the general
ban on smoking in bars and restaurants is the exception for “separately
ventilated bar areas.”
Separately
ventilated areas where smoking is allowed have different meanings in the
restaurant context versus in the bar context.
In a restaurant, a separately ventilated bar area is a bar area,
“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.” Thus, none of the restaurant dining area may
be contained within the smoking area, as the separately ventilated bar area
where smoking is allowed must be permanently separated from the dining area so
that smoke from the bar area cannot reach the dining area. In a bar, the separately ventilated bar area
is “a smaller cocktail lounge or bar area” which also has a permanent floor to
ceiling partition, is accessed by a door, and has a separate ventilation
system. Therefore, the only way it appeared at the
time the bill was passed that bars or restaurants could continue to allow
smoking would be to engage in expensive construction of an enclosed area,
partitioned from the rest of the establishment, containing a separate ventilation
system.
Where
the original Act included a smokers’ rights amendment protecting those
employees who smoked away from the job, the Indoor Clean Air Act includes a non-retaliation
provision protecting employees and applicants who desire to work away from
secondhand smoke (essentially a non-smokers’ rights amendment). Employers are forbidden from retaliating
against any employee or applicant for employment if the employee or applicant
“exercised any right to a smokefree environment.” Therefore, employees at restaurants and bars can
request to work in the designated smokefree area of an establishment without
fear of retaliation.
The
Indoor Clean Air Act includes penalty provisions for both private individuals who
violate the law and for the owners of establishments found to be in violation
of the law. Individuals found smoking in a nonsmoking
area are guilty of a misdemeanor and punished by a fine not to exceed $100 and court
costs. The owner, manager, or operator of a bar or
restaurant that does not abide by the law is also guilty of a misdemeanor and
faces the same civil penalty. Owners, managers, and operators of bars and
restaurants, in addition to facing liability if smokers violate the law in
their establishment, also face civil liability for failing to advertise the law. Owners are civilly liable if they fail to
post appropriate signs both at entrances to the establishment and inside the
establishment, if they fail to notify customers as to the availability of a nonsmoking
area, and if they fail to notify people violating the law that they are indeed
doing so. The Howard County Police Department is
empowered to enforce the provisions of the law.
Even
before the law was to go into effect, an attorney in the Howard County Office
of Law discovered a critical loophole in the language of the law that allows
bars to comply with the law by barely constructing a nonsmoking area at all. While restaurants that include bars are only allowed
to permit smoking inside an enclosed, separately ventilated bar area,
establishments that are purely a “bar” face no clear instruction on how large
or small the separately ventilated smoking area must be; all that is mandated
is that the smoking area must be a “smaller… bar area.” While the drafters of the Act thought that
the statutory language meant that at least one-half of the bar had to be
nonsmoking, the County Attorney
now officially interpreted the statutory language as meaning that the smoking
area need be smaller only than the total area of the bar.
Thus, the 39 bars
in Howard County that were unattached to restaurants are essentially exempt
from the law, and some go to great lengths to flaunt their taking advantage of
the loophole within the statutory language. One bar owner designated a
six-foot-by-six-foot entry foyer of his bar as the nonsmoking area. Another restaurant enclosed 14 tables in a
“bar area” that included no bar, thus creating a smoking section in a
restaurant that would otherwise have to be completely smoke-free.
While bars were
finding creative ways to comply with the law while not “complying” with the
law, restaurants that held a liquor license and contained a bar area faced the
choice of either expensive construction of a smoking area, or banning smoking
altogether. Only approximately a dozen
restaurants decided to construct smoking areas. One restaurant spent as much as $150,000 on
renovations to construct a smoking area. All restaurants that do not have a liquor
license, and those restaurants that do have a license but chose not to
renovate, must ban smoking.
Howard
County originally intended to give
bars and restaurants a “grace period” and issue no fines for violations of the
Act for six months after the Act was to take effect on July 1, 1996. However, realizing that publicized leniency
was leading to acts of defiance by restaurants, County officials decided to
eliminate this grace period by September 1996, fining restaurants that still
allowed smoking, but that did not file renovation plans by the end of August
1996 that would bring them in compliance with the law. Police were not the first line of enforcement
of the law. Instead, anti-tobacco
activists went “undercover” to restaurants, where, posing as customers, they
called the police to report violations of the law if they observed smoking or
inadequate signage.
The vagueness and
various loopholes and exceptions in the law led to courtroom battles waged between
Howard County
and activists on both sides of the tobacco issue. Anti-smoking activists filed claims with the
Howard County Office of Civil Rights seeking to enjoin the eleven restaurants
that continued to allow smoking in enclosed areas from doing so. The complaints argued that the separately
ventilated bar areas were not accessible to people who suffer from severe
respiratory problems in much the same way as a restaurant without steps would
be inaccessible to people in wheelchairs. Despite objections from an unusually motley
group (restaurant owners, the tobacco lobby, a member of the Howard Commission
on Disability Issues, and the Howard County Executive), all stating that these
claims were frivolous and an example of anti-tobacco extremism, the Howard
County Commission on Civil Rights proceeded with an investigation of these
complaints. However, these claims were eventually
dismissed by the Commission in February 1997.
Also in February
1997, Howard County
filed a ten-count lawsuit in Howard County Circuit Court against a restaurant,
alleging that the restaurant was deliberately violating the Act and allowing
customers to smoke in non-separately ventilated areas. The suit alleged that Howard County Police
inspected the restaurant six times in January 1997, observing thirty violations
of the law. While the restaurant, backed by tobacco
lobbyist Bereano, had originally threatened to challenge the validity of the
law, the restaurant chose to settle with Howard
County, instead of proceeding with
a legal battle. The restaurant sought a consent decree with Howard
County whereby they agreed to
complete construction of a separately ventilated smoking area and temporarily
ban smoking until this construction was complete.
While it seemed
that a status quo had been reached where restaurants and bars could comply with
the law while still allowing smoking in separately ventilated areas, recently,
anti-tobacco advocates have lobbied the Howard County Government to strengthen
the statutory provisions and place an outright ban on smoking in bars and
restaurants. Anti-smoking advocates performed a study,
finding that 41% of restaurants and bars in Howard
County continued to allow smoking
in 2004. The study notes that within these restaurants
and bars that still allow smoking, 47% allow smoking either in the entire
establishment, or within a room that is not fully enclosed or separately
ventilated. Currently, no members of the Howard County
Council have agreed to introduce a bill that would change the law and create an
outright ban on indoor smoking in bars and restaurants. However, tobacco foes are certain to keep
fighting for a change to the current law, that although passed with the best of
intentions, has been interpreted so that smoking is still allowed in many Howard
County bars and restaurants.
IV. Montgomery County: An
Indoor Clean Air Law Passes Despite Legal Challenges and Questions Regarding
the County Council’s Authority to Pass Such a Law
Montgomery
County, Maryland, a largely suburban county
bordering Washington, DC and Howard
County, had also taken progressive
steps to ban indoor smoking in the early 1990s.
In May 1990, the Montgomery County Council banned smoking in business
offices with more than two employees (except for designated smoking areas), in
employee restrooms, and in company cars. This ban includes elevators, lobbies,
restaurants, and public meetings in private office buildings. At the time the bill was passed, it was the
only such law restricting workplace smoking in the state, designed to promote
and protect the public health of employees in the workplace. In January 1994, the Montgomery County
Council unanimously passed a bill further limiting indoor smoking. Smoking is banned in all privately owned
buildings if county employees work there, covering, for example, privately
owned volunteer fire department buildings where county fire fighters work.
In
1997, the Montgomery County Council voted 7-2 against a bill that purported to
ban smoking in county restaurants. <