A TALE OF THREE COUNTIES

A Legal Meta-Analysis of Local Clean Indoor Air Laws in Maryland

By: Jeremy Rachlin[1]

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 14^th 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.[2] 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.[3] 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.[4] 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.[5] 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.[6] 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.[7] The EPA also concluded that secondhand smoke bears significant health risks for exposed children, increasing the risk of bronchitis, pneumonia, and asthma.[8]

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.[9] 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.[10] 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.[11]

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.[12] 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.[13] By 1998, 11 jurisdictions had passed such ordinances.[14]

In 1994, the Maryland Division of Labor and Employment took action, passing a regulation banning smoking in all indoor workplaces, including bars and restaurants.[15] The authority of the state regulatory agency to pass such a regulation was explicitly recognized by Maryland’s highest court.[16] 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.[17]

In 1994, The Commissioner of the Maryland Division of Labor and Employment purported to "ensure that in an enclosed workplace there is no smoking."[18] Therefore, the agency passed a regulation banning smoking in all indoor workplaces.[19] An "enclosed workplace" was defined as "an indoor place of employment" and included restaurants, bars, and taverns.[20] 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.[21] 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.[22] The regulation was to take effect August 1, 1994.[23]

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.[24] 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."[25]

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.[26] The Maryland Court of Appeals granted certiorari prior to consideration of the case by Maryland's intermediate appellate court (Maryland Court of Special Appeals).[27] 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.[28] 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.[29] 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.[30]

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.[31] 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.[32] 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.[33] 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."[34] 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."[35] 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.[36] 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…."[37] 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.[38] 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.[39] The lawmaking authority in charter counties is vested in a County Council, who may enact and repeal local laws and regulations.[40] 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.[41] 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.[42] 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.[43] 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.[44]

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.[45] The legislative powers of Code Home Rule counties rests with a board of county commissioners who may enact, amend, or repeal public local laws.[46] 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.[47] 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.[48]

In nine Maryland jurisdictions, power rests with elected County Commissioners.[49] The Maryland General Assembly expressly enumerates powers to the County Commissioners of these counties.[50] 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.[51] In addition to passing laws, County Commissioners are empowered to pass ordinances and other resolutions.[52]

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."[53] The lawmaking arm of municipal corporations is a legislative body elected by registered voters within the municipality.[54] 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.[55] 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.[56]

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.[57] 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.[58] In Talbot County, the legislative power is vested in a County Council consisting of five elected council members.[59]

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.[60] 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.[61] 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.[62] 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.[63]

The first draft of the Howard County legislation originally banned smoking in restaurants, but placed no restrictions on smoking in bars.[64] 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.[65] 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.[66]

Indeed, the County Executive did veto the bill.[67] 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.[68]

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.[69] 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.”[70] 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.[71]

The County Executive also had strong concerns regarding whether Howard County bars and restaurants could remain competitive in the face of such a law.[72] 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.[73] 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.[74] 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.[75]

Finally, the County Executive was opposed to a “smokers’ rights amendment” that had been tacked to the bill by noted tobacco lobbyist Bruce Bereano.[76] 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.[77] 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.[78] 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.[79] 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.[80] 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.[81]

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.[82] 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.[83] Under the Act, the only smoking still allowed in restaurants or bars is in self-enclosed, separately ventilated areas.[84] The law bans smoking in all restaurants without a liquor license.[85] 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.[86]

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.”[87] 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.[88] 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.”[89]

The Howard County Indoor Clean Air Act makes it “unlawful for any person to smoke in any public place… in Howard County….”[90] 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.[91] Included within the list of public places where smoking is prohibited are restaurants and bars.[92] 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.”[93] 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).[94] 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….”[95] 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.[96] The most important exception to the general ban on smoking in bars and restaurants is the exception for “separately ventilated bar areas.”[97]

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.”[98] 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.[99] 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.” [100] 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.[101] Individuals found smoking in a nonsmoking area are guilty of a misdemeanor and punished by a fine not to exceed $100 and court costs.[102] 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.[103] 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.[104] The Howard County Police Department is empowered to enforce the provisions of the law.[105]

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.[106] 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.”[107] 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.[108]

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.[109] One bar owner designated a six-foot-by-six-foot entry foyer of his bar as the nonsmoking area.[110] 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.[111]

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.[112] One restaurant spent as much as $150,000 on renovations to construct a smoking area.[113] 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.[114] 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.[115] 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.[116]

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.[117] 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.[118] 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.[119] However, these claims were eventually dismissed by the Commission in February 1997.[120]

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.[121] The suit alleged that Howard County Police inspected the restaurant six times in January 1997, observing thirty violations of the law.[122] 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.[123] 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.[124]

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.[125] Anti-smoking advocates performed a study, finding that 41% of restaurants and bars in Howard County continued to allow smoking in 2004.[126] 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.[127] 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.[128] 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.[129] This ban includes elevators, lobbies, restaurants, and public meetings in private office buildings.[130] 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.[131] In January 1994, the Montgomery County Council unanimously passed a bill further limiting indoor smoking.[132] 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.[133]

In 1997, the Montgomery County Council voted 7-2 against a bill that purported to ban smoking in county restaurants.[134] However, in the 1998 elections, there was turnover on the County Council and a new majority emerged that supported resurrecting the 1997 measure.[135] In 1999, with the goal of protecting restaurant patrons and employees from the hazards of secondhand smoke, the Montgomery County Council, led by this new majority, began reconsidering legislation that would ban smoking inside all restaurants and bars in the county.[136]

Unlike the Howard County law which allows smoking in separately ventilated areas of restaurants, the proposed Montgomery law would not allow restaurant or bar owners to construct separate smoking areas.[137] At the time the bill was introduced, Montgomery County officials estimated that half of the county’s licensed restaurants had already banned smoking.[138] For restaurants that seated more than 50 people, the then-existing Montgomery County law required a separate non-smoking section but still allowed smoking outside of this section.[139] The then-existing law also permitted smoking in the bar areas of restaurants.[140]

Politics quickly threatened to quash the proposed legislation. Initially, the Montgomery County Executive refused to take a stance on the proposed bill.[141] However, when the Governor of Maryland called members of the Montgomery County Council to voice his support for the proposed legislation, the County Executive sharply voiced his anger at the Governor for what he perceived to be “meddling.”[142] The County Executive hoped to introduce a compromise bill that would mirror the Howard County law by still permitting smoking in separately ventilated areas of bars and restaurants, and sought out possible allies amongst County Council members who had not yet supported the proposed bill.[143]

In the face of this posturing and lobbying by the Governor and the County Executive, in March 1999, the Montgomery County Council, by 5-4 vote, passed legislation prohibiting smoking in all bars and restaurants, without exceptions.[144] As a compromise to obtain the key votes necessary for passage of the bill, the County Council adjusted the date the bill would take effect to give businesses more time to accommodate the new restrictions, and also earmarked $200,000 to assist small restaurants who would be fighting competition from restaurants in bordering jurisdictions where smoking was still allowed.[145] However, knowing that the County Executive would veto the Bill and that there were not the necessary six votes on the Council to override this veto, the Montgomery Council engaged in a bold move to “veto-proof” the bill; a move that would come back to haunt the Council.[146]

The Montgomery County Council, invoking a little-known provision in the Montgomery County Charter, decided to convene as the County Board of Health.[147] The Council, sitting as the Board of Health, is “empowered to adopt and enforce all needful rules and regulations concerning sanitation for eating and drinking establishments.”[148] By passing the law as a county regulation promulgated by the County Board of Health, the County Council eliminated the possibility of veto by the County Executive.[149] In addition to preventing a veto by the County Executive, another effect of the Council promulgating this regulation while sitting as the County Board of Health was that the regulation became binding on separately-governed municipalities within Montgomery County.[150] Municipalities in Montgomery County such as Rockville, Gaithersburg, Poolesville, and Takoma Park have their own city councils and city executive branch, and are not bound by legislation passed by the Montgomery County Council.[151] However, regulations passed by Montgomery County regulatory agencies are binding everywhere within the borders of the County, including within these municipalities.[152]

Immediately upon passage of the regulation, the tobacco lobby and the restaurant industry took aim at both the regulation and the Montgomery County Council members who passed the regulation. For example, the National Smokers Alliance, a public relations group funded by the tobacco industry, aired advertisements on television singling out the member of the Montgomery County Council who had cast the deciding vote on the bill, contending that the blame for economic harm resulting from the bill should rest squarely on that Councilman’s shoulders.[153] The tobacco lobby and the restaurant industry also proposed a petition drive whereby the issue of banning smoking in restaurants would be brought to a referendum before Montgomery County voters.[154]

In addition to reaction from the tobacco lobby and restaurant industry, the passage of the regulation evoked reaction from the County Executive and the municipalities affected by the passage of the bill as a regulation instead of as normal legislation. Three days after the County Council passed the regulation while sitting as the County Board of Health, the County Executive issued a symbolic veto of the regulation, as he had no actual power to veto a piece of regulation passed by the County Board of Health.[155] However, realizing that this was only a symbolic veto, and that the terms of the regulation really were set to take effect, the County Executive immediately began lobbying legislators in bordering Prince George’s County to pass their own restaurant smoking ban as part of a “regional effort.”[156] While the County Executive stated that such a regional effort would be in the interest of public health, it was a secret to nobody that the County Executive actually hoped that Prince George’s County would pass a similar ban because he feared that Montgomery County restaurants would lose thousands of dollars of business to restaurants in the bordering county where smoking was still allowed in restaurants.[157] Meanwhile, the municipalities of Rockville and Gaithersburg voiced their own objections to the passage of the regulation.[158] Lawmakers in these municipalities stated that they would have liked to decide for themselves whether or not to adopt such a smoking ban in restaurants, rather than have the decision forced upon them by the Montgomery Council sitting as the County Board of Health.[159]

The tobacco lobby and restaurant industry went beyond airing television commercials and threatening petition drives, taking their protest to Montgomery County Circuit Court, challenging the validity of the County regulation.[160] The 200 Montgomery County restaurant owners, employees, and customers, listed as plaintiffs in the suit, made three arguments in their suit: 1) that the Montgomery Council sitting as the Board of Health was acting beyond their statutory authority; 2) that the Montgomery regulation conflicted with Maryland state law and was thus preempted, and; 3) that the Montgomery regulation unfairly exempted private clubs.[161] The suit was funded by the National Smokers Alliance, an offshoot of the tobacco industry.[162]

A Montgomery County Circuit Court judge ruled in favor of the plaintiff restaurants (as well as their tobacco lobby backers), on all three arguments.[163] Judge Ann S. Harrington ruled that by passing the bill as a health regulation while sitting as the Board of Health, the Montgomery County Council violated the County Charter by acting as both the executive and legislative branches.[164] Harrington ruled that the regulation also ran afoul of the equal protection guarantees of the United States Constitution in excluding private clubs from the terms of the regulation.[165] Finally, Harrington held that the Montgomery regulation was preempted by the 1995 Maryland state law that allowed smoking in restaurants and bars with liquor licenses.[166] In addition, Harrington noted that the Montgomery County Council, when acting as the Board of Health, did not provide procedural due process in failing to give necessary notice to the public such that public comment on the regulation would be ensured.[167] The County appealed the Circuit Court ruling to the Maryland Court of Special Appeals, while concurrently petitioning the Maryland Court of Appeals for a writ of certiorari prior to proceedings before the Court of Special Appeals.[168] The Court of Appeals granted certiorari.[169]

After two years of deliberation, the Court of Appeals held that the Montgomery County Council did not have the authority to act as the Board of Health, and thus, the regulation was facially invalid.[170] The Court noted that under the original Montgomery County Charter, the Council was the “chief executive authority” because the County Executive position did not exist, and thus could sit alone as the County Board of Health.[171] However, under the current version of the Montgomery County Charter, adopted and effective in 1970, the county government was separated into executive and legislative branches and the County Executive position was created.[172] When the revised Montgomery County Charter took effect, the County Council alone could no longer sit as the Board of Health because they now acted in tandem with the County Executive.[173] Thus, because the County Council acted alone in sitting as the Board of Health when passing this regulation, as opposed to sitting jointly with the County Executive, the regulation was invalid.[174]

Shortly after receiving word of the Court of Appeals decision, the Montgomery Council prepared a new bill, nearly identical to the first bill, intended to ban smoking in all public eating and drinking establishments.[175] The County Executive, who four years prior steadfastly opposed a law that did not make allowances for restaurants with separatelyventilated smoking areas, was now much more receptive to a broader prohibition on indoor smoking.[176] Citing the numerous statewide and local prohibitions on indoor smoking that had been passed since 1999 (when the Montgomery regulation was first proposed), the County Executive stated, “It’s not as controversial as it was when it first passed.”[177]

On July 1, 2003, by an 8-1 vote, the Montgomery County Council passed legislation prohibiting smoking in all indoor, non-private, bars and restaurants.[178] The drafters of the law annunciate four statements of purpose of the law, which are to: 1) “prohibit smoking in certain eating and drinking establishments;” 2) repeal portions of the Montgomery County Code which required non-smoking areas in certain restaurants; 3) provide penalties and procedures for enforcement of smoking restrictions, and; 4) “generally regulate smoking at eating and drinking establishments.”[179] It is interesting to note that the statement of purpose does not include any statement of legislative purpose about improving public health of employees and patrons or any statement of legislative findings regarding the recognized dangers of secondhand smoke. The drafters of the bill also state that the bill is designed to add to, and not “replace or restrict[,] any other applicable federal, state, or County law or regulation.”[180]

The law amends the Montgomery County Code by adding “eating and drinking establishment[s]” to the list of public places where smoking is prohibited.[181] The definition of “smoking” was not amended from the existing Montgomery Code definition, and indoor smoking under the law refers to “[t]he act of lighting, smoking, or carrying a lighted or smoldering cigar, cigarette, or pipe, of any kind.”[182] The definition of “[e]ating and drinking establishment” also was unchanged from the Code definition, including “any food service facility.”[183]

Under the Montgomery law, owners of restaurants and bars have an affirmative duty to both enforce the law and to ensure that the law is not broken. The Montgomery law requires that signs be “posted conspicuously at each entrance” to a public bar or restaurant informing patrons that smoking is prohibited.[184] The law states that these signs may either display the international no-smoking symbol, or display specific language, delineated within the Bill, designating the establishment as a non-smoking establishment pursuant to §24-9 of the Montgomery County Code.[185] In addition to prominently displaying signs, owners or operators of bars and restaurants must refuse to “serve or seat any person who smokes” and are required to ask a person who refuses to comply with the law to “leave the building or area if the person continues smoking after proper warning.”[186]

Private clubs, either defined as such by the state alcoholic beverages law, or defined as such because of being issued a specific type of alcoholic beverage license issued to private clubs, are exempt from the law, meaning that owners of private clubs may continue to allow smoking in their clubs.[187] However, an opt-in provision of the law allows the owner of a private club, if they so choose, to extend the reach of the new county law to inside their private club, prohibiting smoking inside a private club that otherwise would not be covered by the law.[188] The County Council, learning from the experience of having a previous private club exemption challenged on equal protection grounds, added a severability clause to the law. The law states that if the private club exemption “is held to be unconstitutional or invalid on its face or as applied to any person or circumstance,” then the County Council intends for the exemption to be severed from the Bill.[189] If a situation arises where the exemption were severed, prohibitions on smoking in restaurants and bars would “apply to all eating and drinking establishments,” and the law would be silent as to private club regulation.[190]

The Montgomery law does not attach a civil penalty to smokers who violate the law; only owners or managers of establishments where smokers are found violating the law face civil penalties. Any violation of the bill is a Class C civil violation, and each day the violation exists constitutes a separate offense.[191] The fine for such a Class C violation is $50 for the first offense and $75 for each subsequent offense.[192] If there are repeated violations of the law, the Montgomery County Attorney, or any other “affected party”, may file an action in court against the owner or manager of the establishment seeking equitable relief in the form of an injunction to enjoin future violations and compel compliance with the law.[193] Further, if the Director of the Montgomery County Department of Health and Human Services finds that “the operator of an eating and drinking establishment has knowingly and repeatedly violated” the bill, they retain the power to suspend the license of that establishment for up to three days (emphasis added).[194] Thus, unlike the Howard law which includes penalties for private individuals who violate the law, the Montgomery law only penalizes owners and operators of establishments where the law is being violated.

The final provision of the Montgomery law stems from the knowledge of the County Council that enactment of the law could subject Montgomery bars and restaurants to economic harm. The last provision of the Montgomery law directs the Montgomery County Department of Economic Development to establish and administer a fund “to provide marketing assistance to County restaurants affected by the provisions of this law.”[195] This provision in the law likely was included to appease the fears of restaurant owners that the County Council was enacting this law with willful blindness towards the economic plight that could result from such a law. The law was signed by the County Executive on July 10, 2003, and took effect October 9, 2003.[196]

One month before the law was to take effect, the Restaurant Association of Maryland filed suit in Montgomery County Circuit Court to enjoin enforcement of the law.[197] This lawsuit was not financed by the tobacco industry, but rather was a grassroots struggle funded by restaurant owners, employees, and patrons.[198] However, the evening before the law was to take effect, a Montgomery County Circuit Court judge declined to issue a preliminary injunction, stating that although the restaurant owners could continue with their lawsuit against the County, the equal protection argument advanced in the suit would likely fail.[199] The judge noted that the restaurant owners had failed to demonstrate that in exempting private clubs from the ban, the County Council had “acted arbitrarily or unnecessarily.”[200] In fact, un-codified language accompanying a statute passed by the Maryland General Assembly expressly preempts local governments from restricting smoking in private clubs, empowering local governments only to pass more restrictive smoking regulations on “establishments open to the public.”[201]

Because the County Council passed this as a law instead of as a county health regulation, the legislation does not apply to municipalities within the borders of the county, such as Rockville, Gaithersburg, Poolesville, and Kensington, among others.[202] However, by the end of October, the Rockville City Council introduced legislation that parallels the Montgomery law in restricting smoking in public bars and restaurants.[203] After Rockville enacted their own legislation, Gaithersburg and Takoma Park scheduled hearings to discuss whether or not their city codes should be brought in line with the Montgomery Bill.[204] In March 2004, the Gaithersburg City Council adopted a ban on smoking in bars and restaurants that mirrors the Montgomery law, although establishments that already utilized enclosed, separately ventilated smoking areas, were given a one-year grace period to comply with the ban.[205] By October 2004, one year after the Montgomery law took effect, the sparsely populated town of Poolesville was the only municipality within the county where smoking was still allowed.[206]

V. Talbot County: Health Concerns Lead To A Less-Contested Total Smoking Ban for Bars and Restaurants

In 1993, Talbot County, a primarily rural county on Maryland’s Eastern Shore, was the first jurisdiction to pass an indoor anti-smoking ordinance more stringent than the pre-existing Maryland state clean indoor air law.[207] While Howard County was the first jurisdiction to propose such an ordinance, Talbot County actually passed their ordinance in between the Howard County Executive’s veto of the first draft of the Howard County bill and passage of the second draft of the bill into law by the Howard County Council.[208] Encouraged by a poll which showed that most Talbot County residents favored restrictions on the public use of tobacco, the Talbot County Health Officer prepared a bill that, in part, would require restaurants to provide non-smoking sections.[209] However, the Talbot County Council further extended the restrictions proposed by the County Health Officer, amending the bill to completely ban smoking in all county restaurants.[210] The Talbot Council passed the bill unanimously on August 10, 1993.[211] However, while the Talbot law prohibited smoking in all county restaurants, smoking was still allowed in other places that served food such as bars, private clubs, pool halls, and private clubs.[212]

Despite the poll indicating that the majority of Talbot County residents would support further restrictions on smoking in public places, Talbot County residents evidently did not believe that the Talbot Council would go as far as they did in banning smoking in all restaurants. Opponents of the law argued that it would cause great economic harm to Talbot restaurants.[213]
Supported by the tobacco lobby, opponents organized a petition drive and successfully petitioned the Bill to a referendum before Talbot County voters in the November 1994 election.[214] The referendum was the most expensive campaign in Talbot County history, as the tobacco lobby spent $86,000 to fight the law and support the referendum movement.[215] Despite the influx of tobacco money, by the slimmest of margins, 4,888 to 4,620, voters approved the measure banning smoking in Talbot County restaurants.[216]

Shortly after the bill was voted into law, a tremendous loophole was found in the law. Although “bars” were considered exempt from the law, under another provision of the Talbot County Code, all Talbot bars must serve food.[217] Therefore, the question arose as to which establishments that served both food and alcohol were considered a “bar” and not subject to the prohibition on smoking, and which establishments that served both food and alcohol were considered a “restaurant,” and thus had to comply with the new law? Therefore, in many restaurants that contained a bar area, smoking was not permitted in the dining room of the establishment but was permitted if the customer was seated in the bar area.[218] Thus, the intent of the law, to eliminate smoking from all public restaurants, was circumvented in many restaurants where smoking was still allowed in portions of the establishment. There was no question, however, about restaurants that did not have a liquor license and thus no bar area: smoking was prohibited.

All was quiet for the next nine years. Opposition to the Talbot law faded, to the point where one of the more vocal opponents of the 1994 law banning smoking in restaurants stated publicly that he was ready to live with the law.[219] In November 2003, members of the Talbot County Council announced plans to enact legislation that would close the loophole allowing smoking in the bar areas of county restaurants.[220] The proposed legislation would maintain an exemption for private clubs, but would render all public indoor spaces completely smokefree.[221]

Initially, the Talbot Council wanted to go beyond banning smoking inside all public establishments. In the first draft of the proposed bill, the Council wanted to prohibit smoking within a 25-foot radius of the entrance of a public place or restaurant.[222] However, this provision was stricken from the draft bill before it was introduced to the public.[223]

On December 9, 2003, all five members of the Talbot County Council introduced the final version of Bill 934 which would eliminate the bar exception to the 1993 county law and ban smoking in all public restaurants and bars.[224] Over the following weeks, there were hearings and debate in the community as to whether the bill should be passed. Many in the community were concerned about an exception in the bill for private clubs, but county officials responded that they did not have the authority to extend this more stringent prohibition to private clubs.[225] Restaurant owners also argued that a comprehensive prohibition would bring significant economic harm to their businesses.[226] The County Council argued, more forcefully than their Montgomery and Howard counterparts, that the purpose of the bill was to protect the health of restaurant employees and patrons, and not to force a particular decision about smoking upon restaurant owners and patrons.[227]

Just before the bill was passed, political posturing threatened to block its passage.[228] One Councilman, who had previously supported the bill, introduced a last-minute amendment that would have allowed restaurants to build a separately enclosed, separately ventilated bar area provided they also had a larger non-smoking bar area.[229] The amended statute would resemble the Howard County law, except this statute would survive the type of civil rights challenge brought by non-smoking advocates against the Howard law because the amended Talbot law expressly provided for a non-smoking bar area.[230] Three other Council members who had worked to construct the original bill responded vigorously that the intent of the statute was to protect restaurant employees, and an amendment allowing for smoking areas would directly contravene the legislative intent by continuing to force restaurant or bar employees to work in an area where smoking was permitted.[231] If the council had voted in favor of this amendment, new hearings would had to have taken place which would effectively have killed the bill because the sunset date of the bill was only one week away.[232] On February 3, 2004, the Talbot Council voted 3-2 to reject the amendment, and on the same evening, voted 4-1 in favor of Bill 934, enacting a total ban on smoking in public restaurants and bars.[233]

Bill 934 does not begin with a strong statement of purpose except to say that the law is designed to amend the Talbot County Code by eliminating the exception permitting smoking in bars, by exempting private clubs from smoking prohibitions contained in the law, and by providing for penalties for violation of the law.[234] However, a strong and clear statement of purpose appears in the Talbot County Code immediately preceding the portion of the Code which Bill 934 amended. First, the Talbot Council presents a statement of findings, noting that: 1) numerous studies have found secondhand smoke is “a major contributor to indoor air pollution;” 2) that other “reliable studies” have shown that secondhand smoke increases the risk of lung cancer, cardiovascular disease, and other respiratory problems in nonsmokers, and; 3) that secondhand smoke carries numerous other bronchial and respiratory hazards to nonsmokers.[235] Next, the Talbot Council declares that the purposes of prohibiting indoor smoking are “to protect the public health and welfare” and to “strike a reasonable balance between the needs of persons who smoke and the need of nonsmokers to breathe smoke-free air.”[236] The Council notes that where these two needs are in conflict, “the need to breathe smoke-free air shall have priority.”[237] The Talbot Council also explicitly includes anti-preemption language, stating that Bill 934 “adds to, and does not replace or restrict, any other applicable Federal, State, or County law or regulation.”[238]

The law eliminates language from the Talbot Code which had allowed smoking in the bar area of a restaurant, stating that in a restaurant, defined as any “eating establishment which gives or offers for sale food to the public, guests, or employees,” smoking is prohibited.[239] Because any establishment in Talbot County that has a liquor license also must sell food, all bars are contained within the statutory definition of a restaurant. Thus, because “restaurants” are listed within the Talbot Code as an “enclosed public place” where smoking is prohibited, and all bars are considered restaurants, all bars and restaurants must prohibit smoking under the Talbot law.

The Talbot law exempts the bars and dining rooms of private clubs from the prohibitions against indoor smoking.[240] However, like the Montgomery law, the Talbot law includes an opt-in provision for the “owner, operator, manager, or other person” who controls such a private club to “declare the entire establishment as a nonsmoking establishment.”[241] Also, like the Montgomery law, the Talbot law includes a severability provision whereby the private club exception will be stricken if it is “held to be unconstitutional or invalid on its face or as applied to any person or circumstance.”[242] The Talbot Council states in the statutory language that if the private club exemption is stricken, the intent of the Council is for the prohibitions on indoor smoking to “continue in effect and apply to all eating and drinking establishments,” including those that had previously been exempted.[243]

Owners and managers of Talbot County establishments have an same affirmative duty to notify patrons of the provisions of the law, but do not have the same duty to enforce the law as owners and managers of Montgomery County establishments have to enforce their law. The Talbot County Code requires “clearly, sufficiently, and conspicuously posted” signs in bars and restaurants as regulated by the Code.[244] The signs must either have the international “No Smoking” symbol, or have letters, “not less than one inch in height,” notifying patrons that smoking is prohibited inside the establishment.[245] While owners and managers in Montgomery County must refuse to serve patrons who smoke in violation of county law, owners and managers of Talbot establishments “may inform persons violating this chapter of the appropriate provisions thereof.”[246] This choice given to Talbot County restaurant and bar owners of whether or not to inform patrons seems to contradict statutory language elsewhere in the chapter, which states that it is “unlawful” for an owner or manager who controls an establishment to fail to comply with the chapter.[247]

The Talbot County Health Department is charged with enforcing the ban on smoking in bars and restaurants.[248] Talbot County Health Officers are empowered to issue civil citations for violations of the law and the Talbot County Attorney is empowered to prosecute violators of the law in criminal court.[249] In addition, while the County Health Department enforces the law, citizens may initiate enforcement of the law by registering a complaint with the Department against a specific bar or restaurant.[250] In addition, a private citizen is empowered under the Talbot Code to bring legal action against a bar or restaurant to compel enforcement of the law.[251]

The penalties for violating the Talbot law apply to “any person” although it is unclear whether only the owners or managers of bars and restaurants face these penalties or whether patrons who smoke could also face penalties.[252] For the first violation of the law, the violation is considered unofficial and the violator receives a written reprimand from the Talbot County Health Department.[253] Thereafter, violators are fined $100 for the first official violation and $200 for each subsequent violation within any twelve-month period.[254] Talbot County is a unique jurisdiction in that it has its own Board of Liquor License Commissioners who may revoke or suspend the license of an establishment. Therefore, the Talbot Council took the unique step of threatening the owners or operators of restaurants and bars with suspension of their liquor license for continued violations of the law. If the owner or operator of a restaurant or bar violates the law more than three times within a twelve-month period, in addition to facing a civil fine, the third violation of the law carries a three-day suspension of the establishment’s liquor license and each subsequent offense carries consecutive ten-day suspensions of the liquor license.[255] The law takes all discretion from the Board of Liquor License Commissioners, stating that the Board “may not amend, modify, or decline to impose the requisite suspension upon any licensee” for violations of the law.[256]

The Talbot County law went into effect on April 3, 2004.[257] In the wake of the smoking ban, bar and restaurant patrons and employees had expectedly mixed feelings about the law.[258] Many bartenders, servers, and patrons were delighted when the ban went into effect, noting that they no longer dreaded feeling sick upon coming home from work or from an evening of drinks.[259] On the other hand, one owner of a restaurant, who smoked herself, called the law “ridiculous,” saying that it felt like the Talbot Council had forced bar and restaurant owners to become “the smoking police.”[260] Nevertheless, there was primarily cooperation with the new law as bar and restaurant owners and patrons learned to live with a new restriction on smoking.

VI. Analysis of the Three Laws and Identification of Factors Which Lawmakers Who Hope to Pass Clean Indoor Air Laws Must Consider

A. Crafting a Challenge-Proof Law

In reviewing the passage of the three local clean indoor air laws banning smoking in bars and restaurants, one thing becomes abundantly clear. The tobacco lobby will exert its influence any time a jurisdiction attempts to pass such a law. One common tactic by the tobacco lobby is to issue a judicial challenge to the validity of such a law. What follows is an analysis of the issues that drafters of a local clean indoor air law must pay special attention to, in the event that they are forced to defend the law in court.

1. Drafting a Preamble to the Bill May Pay Dividends

One of the most important things that a local government drafting a clean indoor air law could do is compose a strongly-worded, well-detailed statement of purpose and findings as a preamble to the bill. While the preamble to the Montgomery law merely summarizes the effect of the bill as prohibiting smoking in public bars and restaurants, the Howard and Talbot laws go much further.[261] The Howard law begins with a preamble, annunciating that the Howard County Council finds that tobacco smoke is a “hazard to the health of the general public” and then setting forth two general purposes of the bill, each of which deals with improving and promoting public health.[262] The Talbot law goes even further than the Howard law, with a preamble that first cites scientific studies which prove that secondhand smoke is hazardous, next cites specific diseases caused by secondhand smoke, and finally stating that the purpose of the law is to protect the public health and welfare.[263] This strong statement of purpose in the preamble to a bill could save a law that faces judicial scrutiny as a possible violation of substantive due process or equal protection, two common claims brought by the tobacco lobby when attempting to strike down clean indoor air laws.[264]

Substantive due process protection is afforded to rights and liberties that are deeply rooted in the tradition of this country such that liberty or justice would be sacrificed if these rights or liberties were taken away.[265] If the court believes that a fundamental right is being infringed upon by the passage of a law, that law must be narrowly tailored to serve a compelling state interest.[266] However, the act of smoking has never been defined as a constitutionally-guaranteed fundamental right.[267] Therefore, a law that infringes upon an individual’s right to smoke, because it is not infringing on a fundamental right, need only bear a rational relationship to a legitimate governmental interest to be sustained.[268]

There is a legitimate governmental interest that has long been recognized in promoting public health and welfare.[269] Therefore, a statement of findings and purpose could suffice as a jurisdiction’s proof that the clean indoor air law is rationally related to the legitimate governmental interest in promoting public health. For example, if the Talbot law were ever challenged, the County Council could point directly to the preamble of the bill, noting that the purpose of the bill is to promote public health and welfare, and they are achieving this purpose by banning an activity that has been proven in scientific studies to cause certain specific illnesses.[270] The language contained solely in the preamble to a law, if strongly-worded, should enable the law to pass judicial muster if it is ever challenged on substantive due process grounds.

Tobacco lobbyists have also challenged clean indoor air laws on equal protection grounds, arguing that these laws discriminate against smokers as a class of citizens.[271] If the court believes that the classification of smokers is “suspect,” the law must be narrowly tailored to achieve a compelling state interest. However, the courts have held that the classification of smokers is not suspect, and therefore laws that target smokers for special treatment are presumptively constitutional unless the opponent of the law can prove that the law has no legitimate governmental purpose.[272]

Again, a strong statement of findings and purpose in the preamble to a law might sustain a law challenged upon equal protection grounds. For example, if the Talbot law were ever challenged on equal protection grounds, because smokers have never been recognized as a suspect class, all Talbot would have to prove for their law to be sustained in the courts is that the law is rationally related to a legitimate governmental purpose. The preamble to the Talbot law would provide a valid defense to an equal protection claim. The language contained in the preamble states that the purpose of the law is to promote public health (a purpose that has been recognized as legitimate) and the law accomplishes this by prohibiting an activity that has been proven to cause specific diseases and death.[273] Thus, the preamble would prove that the law is indeed rationally related to a legitimate governmental objective such that the law would pass judicial muster on an equal protection claim.

A strong and clear statement of purpose and findings is integral when drafting a law, as it might provide the greatest defense if the law is ever challenged upon either substantive due process or equal protection grounds.

2. Ensure That All Definitions Contained in the Bill are Airtight

When drafting a clean indoor air bill, legislators must take special care to tighten up all definitions of words within the bill, so that there can be no question as to the meaning of terms of the bill. Otherwise, loopholes might be found that ultimately defeat the legislative intent of the bill.

For an example of the importance of impeccably-defined terms within a Bill, one need look no further than the loophole interpreted into the Howard County law, eventually allowing many establishments to continue to allow smoking despite a law that purported to ban smoking in most public bars and restaurants. The language of the Howard law states that the separately-ventilated area of bars where smoking is still allowed must be a “smaller area.”[274] While the drafters of the law likely assumed that this clause would be interpreted as meaning less than half of the total area of the bar, the Howard County Attorney gave a different official interpretation of the law. He stated that the law only required that the smoking area of a bar be smaller than the total area of the bar, meaning that bar owners can comply with the law by keeping 95% of their bar as a smoking area while prohibiting smoking in only 5% of the bar.[275] Therefore, an area as small as a foyer can be the non-smoking area of a bar, as technically it is partitioned from the rest of the bar by an interior door, and is separately ventilated by an exterior door swinging open to the parking lot.[276]

In the wake of restaurant owners’ success at emasculating the intent of statutes by taking a mile when given an inch, it seems that the safest route for drafters of a clean indoor air law to take is an all-or-nothing approach to drafting the law. Montgomery and Talbot Counties went this route, barring smoking in all restaurants and bars with no exceptions for separately-ventilated smoking areas.[277] This type of total prohibition would face greater opposition from the tobacco lobby, and possibly greater difficulty in garnering legislative support, than only a partial prohibition or one where compromises are made. However, a total prohibition on smoking in bars and restaurants does not seem as radical today as when Howard County first passed their law over 11 years ago. In fact, anti-tobacco advocates in Howard County are currently attempting to amend the current law that has a loophole for separately-ventilated smoking areas, by placing an outright ban on smoking in bars and restaurants.[278]

Because the tobacco lobby and restaurant owners will scrutinize every word of a law that bans smoking in bars and restaurants, it is of paramount importance to ensure that the definitions of terms within the law match the legislative intent of the law. If this is not the case, devastating consequences can occur and the intent of the law can be completely circumvented.

3. Identify Preemption Concerns and Include All Necessary Exceptions

Drafters of a clean indoor air law must also ensure that their law is not overly broad, and as such, preempted by other legislation and facially invalid. While an outright prohibition might be attractive, drafters must ensure that there are adequate exceptions in the law for places where smoking is still allowed either because the reach of local law does not extend to a certain location, or because local law has been preempted from legislating in that area.

For example, voters in Talbot County were angered that the clean indoor air law passed by the County Council did not extend to private clubs, instead only prohibiting smoking in public bars and restaurants.[279] However, the Talbot County Council was well aware of the fact that uncodified language from the Maryland General Assembly expressly preempts local government from extending the prohibitions on smoking to private clubs.[280] The doctrine of preemption states that if a local government passes a law that is inconsistent with a pre-existing state law, the local law “ranks lower” than the state law and is preempted from enforcement by the contradictory state law.[281] Thus, Talbot County could encourage private club owners to take part in the smoking ban by including an opt-in provision, but they could not force them to prohibit smoking in their establishments because the Maryland Legislature had already preempted them from acting.[282]

An outright smoking ban may be attractive, but local governments must be exceedingly careful when drafting clean indoor air legislation not to infringe on ground where the state government has already passed laws. If they do so, the local law may very well be nullified or challenged on the grounds of preemption. Thus, they must beware of the requisite exceptions to be contained within the law.

4. Play it Safe: Include a Severability Clause in the Bill

As stated previously, one common legal challenge brought by the tobacco industry against local clean indoor air laws is based upon equal protection, grounded in the notion that the law treats one group or class of citizens differently from another class.[283] While an obvious classification that results from such laws are the rights of smokers versus the rights of non-smokers, another classification is commonly drawn. In jurisdictions where local governments are preempted from prohibiting smoking in private clubs and therefore continue to allow smoking in private clubs, the tobacco lobby has raised an equal protection argument based upon the rights of those who do not belong to private clubs being subordinate to the rights of those who do belong to these clubs.[284]

A Montgomery County Circuit Court judge ruled that the Montgomery law did indeed run afoul of equal protection based upon this argument.[285] A few years later, another Montgomery County Circuit Court judge held that virtually the same law did not run afoul of equal protection.[286] Maryland’s highest court has yet to rule on the merits of such an equal protection argument based upon perceived preferential treatment received by the class of citizens who belong to private clubs and are still allowed to smoke in these clubs.

If the Court of Appeals were to sustain such an argument, the severability clause that appears in the Montgomery and Talbot laws is extremely important. The inclusion of a severability clause ensures lawmakers that if allowing for smoking in private clubs while prohibiting smoking in public bars and restaurants is ever ruled unconstitutional, the prohbitions on public smoking will still survive. If the law is ruled unconstitutional, the portion of the law mentioning private clubs would simply drop from the text of the law and the law would be silent regarding private clubs. Meanwhile, the law would continue to be enforceable as to public restaurants and bars.

A severability clause ensures that if the tobacco lobby ever mounts a successful challenge to a clean indoor air law based upon equal protection grounds, the law will still operate to prohibit smoking in public bars and restaurants, and will simply remain silent as to private clubs. The law would thereby fall within the police power of the local government, while still be consistent with the uncodified preemption language passed by the Maryland General Assembly.

B. Crafting A Lobby-Strong Bill

In further reviewing the passage of the three local clean indoor air bills, it becomes clear that the tobacco lobby will exert its influence any time a local government endeavors to pass such a bill, likely making passage of the bill a nightmare for the local government. The tobacco lobby is adept at turning legislators against one another, and using the court of public opinion to try to turn the public against the law. What follows are additional considerations that local lawmakers should take heed of when attempting to pass a clean indoor air law.

1. Play Politics Before Passage of the Law and Develop a Unified Front

Before endeavoring to pass a clean indoor air law, the importance of making sure that there are enough unwavering votes in favor of the law, and the importance of ensuring that all necessary branches of government are in agreement on passage of the law cannot be overstated.

The longer a law continues to be merely a “proposed law,” the longer the tobacco lobby has to interfere with passage of the law by threatening suit, drumming up opposition from restaurateurs, or even resorting to smear tactics designed to harm the reputation of legislators. Therefore, there tension exists between two conflicting goals: passing the bill quickly to avoid interference from the tobacco industry versus passing the bill safely to ensure agreement and passage by the legislative and executive branches. Legislators should take heed that a law that passes with guaranteed agreement between the branches of government, or a law that passes with the requisite number of votes to override any potential veto, can withstand any legislative challenge, provided the law is not preempted by any existing state law.

Thus, a lawmaker who aspires to pass a clean indoor air law must be sure to line up their votes. They may need to be persuasive, as it is well-known that supporting such a law could be very costly politically.[287] Examining the passage of all three Maryland laws indicates the importance of a solid coalition of unwavering legislators supporting the same law. In Howard County, the County Council could not override the County Executive’s veto of the first clean indoor air law because a council member who was supposed to vote to override the veto fell ill.[288] Even though this was a completely unforeseeable turn of events, this underscores the importance of ensuring as many votes in favor of the bill as possible. In Montgomery County, the County Council was forced to take the drastic measure of sitting as the County Board of Health when they first attempted to pass a clean indoor air law because they knew that they did not have enough votes to override a certain veto from the County Executive.[289] In Talbot County, the County Council nearly fractured when two council members made a last-minute attempt to amend the bill which would have pushed the bill past its sunset date.[290] There must be a solid coalition amongst the legislative branch in support of the same law, and strong enough in numbers to override any potential veto from the executive branch.

While a solid coalition of lawmakers in the legislative branch is a necessary start, it would also be beneficial once this coalition exists to convince the executive branch to join the legislative branch in support of the bill. In jurisdictions such as Howard and Montgomery Counties where there is an executive branch with veto power over the legislative branch, this is an important political maneuver. Even if there are the requisite number of votes to override a potential veto from the executive branch, passage of clean indoor air laws is unfailingly controversial, and unanimous support for the law from the two branches of government would make a strong statement.

The passage of a clean indoor air law will always be a political issue that generates heat and passion from both supporters and opponents of the law. While there is a need to pass such a law quickly, there is an even more important need for lawmakers to ensure that there is solidarity amongst the legislative and executive branches so that once a proposed bill is announced, it does not face an uncertain political future.

2. Beware of the Economic Arguments Made by Supporters and Opponents of the Bill

The bar and restaurant industry is a multi-million dollar industry that relies 100% on patronage for economic viability. When a clean indoor air law is proposed, opponents of the law, backed by the tobacco lobby, will be armed with figures demonstrating the significant economic loss that the law may cause them. Supporters of the law will be armed with opposite numbers, stating that such laws either have no effect on patronage at bars and restaurants, or actually causes patronage to increase.

In Howard and Montgomery Counties, after passage of clean indoor air laws, restaurateurs predicted and reported devastating economic losses. The owner of one Howard County restaurant complained to a Baltimore Sun reporter that he had spent $300,000 in renovations and expansion so that he would not lose patrons to bars and restaurants in nearby jurisdictions where smoking was not prohibited.[291] Restaurants in Montgomery County complained of a 30 – 50 percent decline in sales because patrons were frequenting bars and restaurants in neighboring jurisdictions where smoking was not prohibited.[292] The owner of a Montgomery County pool hall complained to reporters that he had laid off 30% of his staff, downsized his facility by 25 – 30%, and had suffered a drastic loss in business immediately following the passage of the Montgomery clean indoor air law.[293] The Anchor Inn, the restaurant who was the named plaintiff in the suits challenging both Montgomery County laws, closed in August 2004, citing a 40% loss in sales.[294]

While some bars and restaurants may suffer economic loss and gain press recognition and public sympathy for their loss, supporters of clean indoor air laws present their own data, which plainly contradicts the loss cited by the restaurant industry. Supporters of clean indoor air laws cite smoking as a cause of higher maintenance expenses, higher insurance premiums, and higher labor costs for bar and restaurant owners which actually make it more expensive to operate their establishments.[295] An overview of twenty studies examining the effect of clean indoor air laws on taxable sales in restaurants found that nineteen of the studies concluded that the law had no effect or a positive impact on income, while only one studies discovered a negative impact.[296] Examining actual monetary figures, supporters of clean indoor air laws cite that California bar owners enjoyed increased yearly revenue by a total of over $250 million in each of the four years following the statewide ban on smoking in 1995.[297]

While opponents of clean indoor air laws will predict dire economic consequences for bars and restaurants in jurisdictions that purport to ban smoking in these establishments, there are just as many figures that predict either no economic effect, or a positive economic effect. The one fact that cannot be misconstrued is that for all of the purported economic harm that these laws may cause, not one single clean indoor air law has been overturned since the first law was passed in 1993. Clearly the economic consequences of these laws cannot be as severe as the tobacco lobby would have the general public believe. If the result of these laws was the death of a multi-million dollar industry, certainly these laws would not longer exist.

VII. Conclusion: The Net Result of Clean Indoor Air Laws Is Promotes and Protects The Health of Bar and Restaurant Employees and Patrons

Scientific evidence unquestionably proves that secondhand smoke is a clear and present health hazard to nonsmokers and to the general public. Secondhand smoke is cancerous, and carries significant health hazards to people who face continued exposure. Bartenders, servers, and other employees at bars and restaurants where smoking is still allowed, face prolonged exposure to secondhand smoke and are directly in harm’s way. While smokers certainly have rights, the majority of Americans choose not to smoke and it simply does not make sense that a minority of Americans should be allowed to endanger the health of the majority. In the interest of the health of these employees and of those who patronize bars and restaurants, local governments should exercise their police powers and extend clean indoor air laws to bars and restaurants.

The passage of clean indoor air laws in three Maryland counties carries important lessons to legislators who seek passage of similar laws in their own jurisdictions. First, legislators must take active steps to make sure that the law that they craft will withstand judicial scrutiny, as well as the exacting scrutiny of tobacco lobbyists who will look for any way possible to circumvent the law. Second, legislators must be prepared for a vigorous fight from the tobacco lobby and from restaurateurs when they propose clean indoor air laws. While the story of the passage of clean indoor air laws as applied to bars and restaurants in Howard, Montgomery, and Talbot Counties, differ in many ways, the laws ultimately survived political fights and judicial scrutiny. All are currently in force today, promoting and protecting the health of bar and restaurant employees and patrons in these jurisdictions.

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[1] Jeremy Rachlin is a second-year law student at the University of Maryland School of Law. He is the Managing Editor of the University of Maryland Journal of Health Care Law and Policy. Mr. Rachlin would like to thank Professor Kathleen Dachille, Director of the Legal Resource Center for Tobacco Regulation, Litigation, and Advocacy, at the University of Maryland School of Law, for her generous offerings of time and support (both material and moral) during the drafting of this paper.

[2] U.S. Census Bureau, Montgomery County QuickFacts from the US Census Bureau, available at http://quickfacts.census.gov/qfd/states/24/24031.html (last visited Apr. 2, 2004); U.S. Census Bureau, Howard County QuickFacts from the US Census Bureau, available at http://quickfacts.census.gov/qfd/states/24/24027.html (last visited Apr. 2, 2004); U.S. Census Bureau, Talbot County QuickFacts from the U.S. Census Bureau, available at http://quickfacts.census.gov/qfd/states/24/24041.html (last visited Apr. 2, 2004).

[3] U.S. Census Bureau, supra note 2.

[4] U.S. Census Bureau, supra note 2.

[5] U.S. Census Bureau, supra note 2.

[6] U.S. Environmental Protection Agency, Office of Research and Development & Office of Air and Radiation, Respiratory Health Effects of Passive Smoking: Lung Cancers and Other Disorders (Dec. 1992).

[7] Id. This conclusion from the EPA report was so controversial, members of the tobacco industry actually filed suit against the EPA, seeking that the agency vacate their finding that secondhand smoke is a known human carcinogen. Fourth Circuit Rules EPA Report Beyond Challenge, 2 Tobacco Reg. Rev. 1, 14 (2003). The EPA was victorious at the trial court level, as the United States District Court for the Middle District of North Carolina entered partial summary judgment for the tobacco industry, ordering that large portions of the report be stricken. Id. However, on appeal, the Fourth Circuit found that the EPA report was not reviewable agency action, and vacated the decision of the lower court. Id.

[8] U.S. Environmental Protection Agency, Office of Research and Development & Office of Air and Radiation, Respiratory Health Effects of Passive Smoking: Lung Cancers and Other Disorders (Dec. 1992).

[9] National Cancer Institute, National Institutes of Health, Cancer Control and Population Sciences, Monograph No. 10: Health Effects of Exposure to Environmental Tobacco Smoke, Table 1.1 at 2 (1999), available at http://cancercontrol.cancer.gov/tcrb/monographs/10/m10_complete.pdf (last visited Apr. 2, 2004).

[10] American Lung Association, Secondhand Smoke Fact Sheet (Nov. 2003), available at http://www.lungusa.org/site/pp.asp?c=dvLUK9O0E&b=35422 (last visited Apr. 2, 2004).

[11] Matt Barry, The National Center for Tobacco-Free Kids, Secondhand Smoke, EPA, and the Courts (Sep. 24, 2003) citing Ryo Otsuka, et al., Acute Effects of Passive Smoking on the Coronary Circulation in Healthy Young Adults, 286 JAMA 4 (July 25, 2001).

[12] American Lung Association, supra note 10; National Cancer Institute, supra note 9, at §2.2.2.2, 16.

[13] American Nonsmokers’ Rights Foundation, Local 100% Smokefree Laws in all Workplaces, Restaurants, and Bars: Effective by Year, Oct. 5, 2004, available at

http://www.no-smoke.org/pdf/current_smokefree_ordinances_by_year.pdf (last visited Apr. 2, 2005).

[14] Id.

[15] Md. Regs. Code tit. 9, §12.23.03 (1994).

[16] Fogle v. H&G Restaurant, Inc., 654 A.2d 449, 470 (Md. 1995).

[17] Md. Code. Ann., Bus. Reg. §2-105 (1995).

[18] Md. Regs. Code tit. 9, §12.23.03 (1994).

[19] Md. Regs. Code tit. 9, §12.23.01 (1994).

[20] Md. Regs. Code tit. 9, §12.23.01 (1994).

[21] Md. Regs. Code tit. 9, §12.23.04 (1994).

[22] Md. Regs. Code tit. 9, §12.23.04 (1994).

[23] See Fogle v. H&G Restaurant, Inc., 654 A.2d 449, 451 (Md. 1995).

[24] Md. Regs. Code tit. 9, §12.23.04 (1994).

[25] Fogle, 654 A.2d at 451-52.

[26] Id. at 452.

[27] Id.

[28] Id. at 457-469.

[29] Fogle v. H&G Restaurant, Inc., 654 A.2d 449, 456 (Md. 1995).

[30] Id. at 470.

[31] Md. Code. Ann., Bus. Reg. §2-105(d)(i) (1995).

[32] Md. Code. Ann., Bus. Reg. §2-105(d)(i)(5)(A) (1995).

[33] Md. Code Ann., Bus. Reg. §2-105(d)(i)(5)(B) (1995).

[34] Md. Code Ann., Bus. Reg. §2-105(d)(1)(ii) (1995).

[35] Md. Code Ann., Bus. Reg. §2-105(d)(3) (1995).

[36] Md. Code Ann., Bus. Reg. §2-105 (editor's note) (1995).

[37] Md. Code Ann., Bus. Reg. §2-105 (editor's note) (1995).

[38] Dan Friedman, Summary of Maryland Local Government Law, Nov. 4, 2004.

[39] Md. Const. art. XI-A, §1.

[40] Md. Const. art. XI-A, §3.

[41] Md. Const. art. XI-A, §2.

[42] Md. Const. art. XI-A, §2.

[43] Md. Code Ann., art. 25A, §5 (2003).

[44] Dan Friedman, Summary of Maryland Local Government Law, art. XI-A at 6, Nov. 4, 2004, citing Md. Const. art. XI-A, §3.

[45] Md. Const. art. XI-F, §2.

[46] Md. Const. art. XI-F, §6.

[47] Md. Code Ann., art. 25B, §13 (2003).

[48] Dan Friedman, Summary of Maryland Local Government Law, art. XI-F at 3, Nov. 4, 2004.

[49] Md. Const. art. VII, §1.

[50] Md. Code Ann., art. 25, §3 (2003).

[51] Md. Code Ann., art. 25, §3 (2003).

[52] Md. Code Ann., art. 25, §3 (2003).

[53] Md. Const. art. XI-E, §3.

[54] Md. Const. art. XI-E, §4.

[55] Md. Code Ann., art. 23A, §2 (2003).

[56] Md. Const. art. XI-E, §1.

[57] Howard County Charter, art. II, §202.

[58] Montgomery County Charter, art. I, §102.

[59] Talbot County Charter, art. II, §201.

[60] Md. Code Ann., Bus. Reg. §2-105 (editor's note) (1995).

[61] Md. Code Ann., art. 25A, §5(A), (J) (2003).

[62] James M. Coram, Howard Enacts Stringent Smoking Ban 1996: Only Bars Will Be Exempt From State’s Toughest Law, Balt. Sun, June 8, 1993, at 1A, available at 1993 WL 7369354.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] James M. Coram, Ecker Vetoes Bill to Ban Smoking in Public Places: Howard May Get State’s Toughest Law, Balt. Sun, June 19, 1993, at 1A, available at 1993 WL 7371680.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Dan Beyers, Tough Smoking Ban Held Up by Veto: Howard County Executive Says Restaurants Might Lose Business, Wash. Post, June 19, 1993, at D3.

[73] Coram, supra note 62.

[74] Beyers, supra note 72.

[75] Md. Regs. Code tit. 9, §12.23.01 (1994); Md. Code. Ann., Bus. Reg. §2-105(d) (1995).

[76] Coram, supra note 67.

[77] Id.

[78] James M. Coram, Howard Smoking Ban Hits Snag: Vote to Override Veto Falls Short, Balt. Sun, June 22, 1993, at 1B, available at 1993 WL 7411003.

[79] Id.

[80] Molly Sinclair, Smoking Ban to Rise From Ashes; Illness Doomed Bid to Override Veto, Wash. Post, June 24, 1993, at M1.

[81] Id.

[82] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.604(f) (1993).

[83] James M. Coram, Anti-Smoking Measure Clears Howard Council: Lawmakers Override Ecker’s Veto for One of Toughest Laws on East Coast, Balt. Sun, Sept. 21, 1993, at 1A, available at 1993 WL 7388359.

[84] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.604(d) (1993).

[85] Coram, supra note 83.

[86] Id.

[87] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.601 (1993).

[88] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.601 (1993).

[89] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.601 (1993).

[90] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.603 (1993).

[91] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(v) (1993).

[92] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(o)(1)(vii, viii) (1993).

[93] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(o)(1)(vii), §12.602(p) (1993).

[94] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(a) (1993).

[95] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(o)(1) (1993).

[96] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.604(a) (1993).

[97] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.604(d) (1993).

[98] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(c)(1) (1993).

[99] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(c)(2) (1993).

[100] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.609 (1993).

[101] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.610 (1993).

[102] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.610(b) (1993).

[103] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.610(c) (1993).

[104] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.610(c) (1993).

[105] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.610(c) (1993).

[106] Craig Timberg, Anti-Smoking Law has Loophole for Bars: Size of No-Tobacco Area Vague in Howard Ruling, Balt. Sun, June 2, 1996, at 1C, available at 1996 WL 6621617.

[107] Id.; Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(c)(2) (1993).

[108] Craig Timberg, 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, Balt. Sun, Nov. 14, 1996, at 1B, available at 1996 WL 6646906.

[109] Craig Timberg, Restaurants Face Tougher Anti-Smoking Policy: Fines, Not Warnings, for Noncompliance, Balt. Sun, July 31, 1996, at 1B, available at 1996 WL 6630247.

[110] Craig Timberg, Tobacco Foes to Monitor Somking Ban: Coalition Warns Restaurants to Comply or Be Reported; ‘A Courtesy Call’; Posing as Customers, Members Will Check for Violations, Balt. Sun, Aug. 13, 1996, available at 1996 WL 6632212.

[111] Timberg, supra note 108.

[112] Craig Timberg, No-Smoking Era Near at Howard Restaurants: Strict Law in Effect Starting Monday, Balt. Sun, Sept. 6, 1996, at 1B, available at 1996 WL 6635764.

[113] Craig Timberg, Anti-Smoking Law Blamed in Pub Closure, Balt. Sun, May 8, 1997, at 4B, available at 1997 WL 5510215.

[114] Timberg, supra note 107.

[115] Timberg, supra note 109.

[116] Timberg, supra note 110.

[117] Craig Timberg, Smoking Foes Try a New Strategy: Coalition Complaints Say Restaurant Policy Violates Civil Rights, Balt. Sun, Oct. 6, 1996, at 1B, available at 1996 WL 6640617.

[118] Id.

[119] Id.; Craig Timberg, County Office Probes Smoking Complaints: 13 Restaurants to be Investigated, Balt. Sun, Dec. 6, 1996, at 4B, available at 1996 WL 6650611.

[120] Craig Timberg, Stakes High in Showdown on Smoking: Restaurant Owners Say Happy Hour Attracts Smokers; Some Businesses Hurting; County Lawsuit Against Clyde’s May be Test Case, Balt. Sun, Mar. 10, 1997, at 1B, available at 1997 WL 5501436.

[121] Dan Morse, Restaurant is Sued Over Smoking Law: County Takes Action Against Clyde’s Alleging Violations; Statute May be Challenged; Lawsuit Says Patrons Allowed to Smoke in Unenclosed Areas, Balt. Sun, Feb. 27, 1997, at 1B, available at 1997 WL 5499775.

[122] Id.

[123] Craig Timberg, Clyde’s to Settle Smoking Lawsuit: Restaurant Imposes Temporary Ban, Plans Renovations; Officials, Activists Pleased; Opposition to Strict Measure Seems to be Evaporating, Balt. Sun, Apr. 3, 1997, at 1B, available at 1997 WL 5505248.

[124] Id.

[125] Larry Carson, Group Seeks Smoking Ban: Law Requiring Separate Rooms is Called Ineffective, Balt. Sun, Nov. 18, 2004, at 1B, available at 2004 WL 96475876.

[126] Smoke Free Howard County Tobacco Coalition, Up to 77% of Restaurants/Bars in Some Howard Areas Allow Smoking.

[127] Id.

[128] Carson, supra note 124.

[129] Montgomery Smoking Ban Takes Effect, Wash. Post, May 25, 1990, at C9.

[130] Arlo Wagner, Smoking Ban Expanded in Montgomery, Wash. Times, Jan. 19, 1994, at C7.

[131] Montgomery Smoking Ban Takes Effect, supra note 82.

[132] Id.

[133] Id.

[134] Scott Wilson, Montgomery May Ban Smoking in Restaurants, Wash. Post, Jan. 20, 1999, at B1, available at 1999 WL 2195025.

[135] Id.

[136] Id.

[137] Id.; Note that in Montgomery County, there is no such thing as a free-standing “bar” that only serves alcohol, as all establishments licensed to sell individual drinks “shall have food for sale during all hours in which alcoholic beverages may be offered for sale. Montgomery County Code, appendix D, §5.15.

[138] Wilson, supra note 133.

[139] Adrienne T. Washington, Montgomery Overreaches on Smoking Ban, Wash. Times, Feb. 12, 1999, at C2.

[140] Scott Wilson, Restaurants Say Smoking Ban Will Cut into Profits, Wash. Post, Feb. 21, 1999, at C1.

[141] Id.

[142] Candus Thomson, Glendening Rebuffed by Duncan on Local Bill: Calls Backing Smoking Ban Annoy Montgomery Chief, Balt. Sun, Feb. 27, 1999, at 2B.

[143] Id.

[144] Candus Thomson, County Passes Smoking Ban: Montgomery to Bar Lighting Up in All Restaurants, Bars; Move Takes Effect in 2002, Balt. Sun, Mar. 3, 1999, at 1B, available at 1999 WL 5174536.

[145] Id.

[146] Montgomery County Charter, §201.

[147] Thomson, supra note 143.

[148] Montgomery County Code §24-1.

[149] Thomson, supra note 143.

[150] Candus Thomson, Montgomery Co. Smoking Ban Now Veto-Proof, Balt. Sun, Mar. 10, 1999, at 2B; Montgomery County Code §24-1 (empowering the County Council to sit as the County Board of Health and pass regulations that are binding on everywhere within the jurisdiction of the county).

[151] Montgomery County Charter §1-203.

[152] Montgomery County Code §24-1.

[153] Mike Hambrick, Smoking Ban Draws Fire From Tobacco Lobby: Ads Target Montgomery Council Member in What Colleagues Call ‘Smear Campaign,’ Wash. Post, Mar. 10, 1999, at B1.

[154] Id.; Montgomery County Charter §214-15.

[155] Candus Thomson, Groups File Suit to Kill Smoking Ban in Bars, Restaurants Set for 2002: Montgomery Council’s Vote to Approve Law Called Illegal ‘End-Run,’ Balt. Sun, May 20, 1999, at 2B, available at 1999 WL 5186664.

[156] Robert E. Pierre, Scott Wilson & Jackie Spinner, Duncan Sees Boon for Pr. George’s in Montgomery Smoking Ban, Wash. Post, Mar. 11, 1999, at M1.

[157] Id.

[158] Bernard Dagenais, Smoking Ban is Harsh Slap for Restauranteurs, Wash. Times, Mar. 15, 1999, at D5.

[159] Id.

[160] Michael E. Ruane, Lawsuit Challenges Smoking Ban: Restaurant Group, Others Seek to Overturn Montgomery Law, Wash. Post, May 20, 1999, at B5.

[161] Thomson, supra note 105.

[162] Id.

[163] Anchor Inn Seafood Industry Restaurant v. Montgomery County Council, Civil No. 199692 (Montgomery County, Md. Circuit Court 1999).

[164] Id.

[165] Id.

[166] Id.; see supra note 33.

[167] Anchor Inn, supra note 163.

[168] Montgomery County v. Anchor Inn Seafood Restaurant, 822 A.2d 429, 431 (Md. 2003).

[169] Id.

[170] Id. Because the Court of Appeals ruled that the regulation was facially invalid, they did not proceed to analysis of the other three arguments made and ruled upon by the Montgomery County Circuit Court. Id.

[171] Id. at 432.

[172] Id.

[173] Id. at 434.

[174] Montgomery County v. Anchor Inn Seafood Restaurant, 822 A.2d 429, 434 (Md. 2003).

[175] Council Bill 15-03, Montgomery County Council, at §1(b)(8) (2003) (enacted).

[176] Councilwoman Nancy Floreen, Smoking Ban Will Help Public Breathe Easier (editorial), Wash. Post, June 5, 2003, at T4.

[177] Id.

[178] Council Bill 15-03, Montgomery County Council (2003) (enacted).

[179] Council Bill 15-03, Montgomery County Council (2003) (enacted).

[180] Council Bill 15-03, Montgomery County Council, at §1(h) (2003) (enacted).

[181] Council Bill 15-03, Montgomery County Council (2003), at §1(b)(8) (enacted).

[182] Montgomery County Code §24-9(a)(9) (2003).

[183] Montgomery County Code §24-9(a)(1) (2003) citing Montgomery County Code at §15-1(d) (2003).

[184] Council Bill 15-03, Montgomery County Council, at §1(d)(1) (2003) (enacted).

[185] Council Bill 15-03, Montgomery County Council, at §1(d)(2) (2003) (enacted).

[186] Council Bill 15-03, Montgomery County Council, at §1(e) (2003) (enacted).

[187] Council Bill 15-03, Montgomery County Council, at §1(c)(7) (2003) (enacted).

[188] Council Bill 15-03, Montgomery County Council, at §1(f) (2003) (enacted).

[189] Council Bill 15-03, Montgomery County Council, at §2(b) (2003) (enacted).

[190] Council Bill 15-03, Montgomery County Council, at §2(b)(2) (2003) (enacted).

[191] Council Bill 15-03, Montgomery County Council, at §1(j)(1) (2003) (enacted).

[192] Fredrick Kunkle, Montgomery Court Denies Challenge to Smoking Ban: Measure Takes Effect Today in Montgomery Restaurants and Bars, Wash. Post, Oct. 9, 2003, at B1.

[193] Council Bill 15-03, Montgomery County Council, at §1(j)(2) (2003) (enacted).

[194] Council Bill 15-03, Montgomery County Council, at §1(j)(3) (2003) (enacted).

[195] Council Bill 15-03, Montgomery County Council, at §3 (2003) (enacted).

[196] Council Bill 15-03, Montgomery County Council (2003) (enacted).

[197] Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, Anchor Inn Seafood Restaurant, et al. v. Montgomery County Council, et al., Civil No. 245-852-V (Montgomery County, Md. Circuit Court 2003).

[198] Id.

[199] Kunkle, supra note 192.

[200] Id.

[201] Md. Code Ann., Bus. Reg. §2-105 (editor's note) (1995).

[202] Montgomery County Charter §1-203.

[203] Robyn Lamb, Rockville Eyes Smoking Ban, Daily Rec. (Baltimore), Oct. 27, 2003.

[204] Fredrick Kunkle, Smoking Bans On the Table, Wash. Post, Nov. 6, 2003, at T3.

[205] Nurith C. Auzinman, Gaithersburg Adopts Broad Smoking Ban, Wash. Post, Mar. 3, 2004, at B3.

[206] Kristen Milton & Jacqueline Mah, Impact of Smoking Ban Varies, Germantown Gazette (Germantown, Md.), Oct. 6, 2004.

[207] William Thompson, Talbot Takes Second Look at Tough Anti-Smoking Law: Petitioners Seek to Overturn Ban, Balt. Sun, Aug. 28, 1993, at 1B, available at 1993 WL 7383356.

[208] Id.

[209] Id.

[210] Id.

[211] Id.

[212] Id.

[213] David Michael Ettlin, Largest Turnover in 20 Years in Maryland Legislature on Horizon: Election 1994, Balt. Sun, Nov. 9, 1994, at 5B, available at 1994 WL 6949496.

[214] Talbot County Charter, art. II, §217 (granting Talbot County residents the power to bring any bill passed by the Talbot County Council before a referendum vote).

[215] William Thompson, Few Butts About it Under New Law, Balt. Sun, Dec. 4, 1994, at 1C, available at 1994 WL 6954457.

[216] Ettlin, supra note 213.

[217] Thompson, supra note 215.

[218] Id.

[219] Id.

[220] John Griep, Talbot Looks at Expanding Smoking Ban: “Bar” Areas Would Lose Exemption, Star Democrat (Easton, Md.), Nov. 27, 2003.

[221] Council Bill 934, County Council of Talbot County, Maryland (2004) (enacted).

[222] John Griep, Indoor Smoking Ban is Proposed: Hearing Set for 2p.m. Jan. 6, Star Democrat (Easton, Md.), Dec. 14, 2003.

[223] Id.

[224] Id.

[225] John Griep, Expanded Talbot Smoking Ban Debated: County was First in State to Impose Ban on Smoking in Most Indoor Public Areas, Star Democrat (Easton, Md.), Jan. 7, 2004; Recall that the Maryland General Assembly explicitly limited the power of local governments to enact restrictions on smoking in private establishments. Md. Code Ann., Bus. Reg. §2-105 (editor's note) (1995).

[226] Griep, supra note 225.

[227] Id.

[228] John Griep, Talbot Council Extends Smoking Ban to Bar Areas, Star Democrat (Easton, Md.), Feb. 5, 2004.

[229] Id.

[230] Recall that in the civil rights claim brought by Howard County non-smokers against 11 restaurants, plaintiffs claimed that because smoking was allowed in the entire bar area of these restaurants, these restaurants did not give equal treatment to those with respiratory problems by failing to provide an adequate bar area where smoking was prohibited.

[231] Griep, supra note 228.

[232] Council Bill 934, County Council of Talbot County, Maryland (2004) (enacted).

[233] Griep, supra note 228.

[234] Council Bill 934, County Council of Talbot County, Maryland (2004) (enacted).

[235] Code of Talbot County, Maryland, §159-1(a) (2004).

[236] Code of Talbot County, Maryland, §159-1(b) (2004).

[237] Code of Talbot County, Maryland, §159-1(b) (2004).

[238] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 117-118 (2004) (enacted).

[239] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 20-23 (2004) (enacted).

[240] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 58-63 (2004) (enacted).

[241] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 68-70 (2004) (enacted).

[242] Council Bill 934, County Council of Talbot County, Maryland, §3, at lines 154-157 (2004) (enacted).

[243] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 159-162 (2004) (enacted).

[244] Code of Talbot County, Maryland, at §159-7(a) (2004).

[245] Code of Talbot County, Maryland, at §159-7(a) (2004).

[246] Code of Talbot County, Maryland, at §159-8(d) (2004).

[247] Code of Talbot County, Maryland, at §159-9(a) (2004).Id.

[248] Council Bill 934, County Council of Talbot County, Maryland, §1 at lines 74-77 (2004) (enacted).

[249] Council Bill 934, County Council of Talbot County, Maryland, §1 at lines 76-77 (2004) (enacted).

[250] Code of Talbot County, Maryland, at §159-8(b) (2004).

[251] Code of Talbot County, Maryland, at §159-8(e) (2004).

[252] Code of Talbot County, Maryland, at §159-9(b), (c) (2004).

[253] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 94-97 (2004) (enacted).

[254] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 100-101 (2004) (enacted).

[255] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 102-107, 108-111 (2004) (enacted).

[256] Council Bill 934, County Council of Talbot County, Maryland, §2, at lines 142-146 (2004) (enacted).

[257] 12 Days Smokefree (editorial), Star Democrat (Easton, Md.), Apr. 15, 2004.

[258] Vicki Fisher, Mixed Feelings Greet Expanded Smoking Ban in Talbot County: Smoking no Longer Allowed in Bar Areas of Restaurants, Star Democrat (Easton, Md.), Apr. 4, 2004.

[259] Id.

[260] Id.

[261] Council Bill 15-03, Montgomery County Council (2003) (enacted).

[262] Howard County Code, §12.601 (2004).

[263] Code of Talbot County, Maryland, §159-1 (2004).

[264] Cheryl Sbarra, Tobacco Control Legal Consortium, Legal Authority to Regulate Smoking and Common Legal Threats and Challenges (2004).

[265] Id. at 4, citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

[266] Sbarra, supra note 264, at 4, citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

[267] Sbarra, supra note 264, at 4.

[268] Id., citing Beatie v. City of New York, 123 F.3d 707 (2nd Cir. 1997).

[269] Sbarra, supra note 264, at 3, citing Fagan v. Axelrod, 550 N.Y.S.2d at 560 (1990).

[270] Code of Talbot County, Maryland, §159-1 (2004).

[271] Sbarra, supra note 264, at 3.

[272] Id., citing Fagan v. Axelrod, 550 N.Y.S.2d at 560 (1990).

[273] Code of Talbot County, Maryland, §159-1 (2004).

[274] Howard County Clean Indoor Air Act, Howard County Code subtitle 6, §12.602(c)(2) (1993).

[275] Craig Timberg, Restaurants, Bars Evade Smoking Law: Legal Interpretations by Office of Law Have Led to Exceptions, Balt. Sun, Nov. 14, 1996, at 1B, available at 1996 WL 6646906.

[276] Id.

[277] Council Bill 15-03, Montgomery County Council (2003) (enacted); Council Bill 934, County Council of Talbot County, Maryland (2004) (enacted).

[278] Smoke Free Howard County Tobacco Coalition, supra note 126.

[279] Griep, supra note 225.

[280] Md. Code Ann., Bus. Reg. §2-105 (editor's note) (1995).

[281] Sbarra, supra note 264, at 2.

[282] Council Bill 934, County Council of Talbot County, Maryland, §1, at lines 68-70 (2004) (enacted).

[283] Sbarra, supra note 264.

[284] See Anchor Inn Seafood Industry Restaurant v. Montgomery County Council, Civil No. 199692 (Montgomery County, Md. Circuit Court 1999).

[285] Id.

[286] Anchor Inn Seafood Restaurant, et al. v. Montgomery County Council, et al., Civil No. 245-852-V (Montgomery County, Md. Circuit Court 2003).

[287] Hambrick, supra note 153 (noting that the National Smokers Alliance, a public relations group funded by the tobacco industry, aired a commercial smearing a member of the Montgomery County Council for casting the swing vote in favor of the clean indoor air law).

[288] Sinclair, supra note 80.

[289] Thomson, supra note 144.

[290] Griep, supra note 228.

[291] Timberg, supra note 120.

[292] Christina Bellantoni, Smoking Ban Has Business Fuming: Bars Reporting Sales Way Down, Wash. Times, Oct. 18, 2003, at B1.

[293] Noelle Barton & Warren Parish, Debate Over Smoking Ban Rages On, Rockville Gazette (Rockville, MD.), Oct. 6, 2004.

[294] Erin Uy, Owners Scramble to Bring In Revenue, Wheaton Gazette (Wheaton, Md.), Oct. 6, 2004.

[295] Tobacco Scam: How Big Tobacco Uses and Abuses the Restaurant Industry, Fake Economics Fact Sheet, available at http://www.tobaccoscam.ucsf.edu/fake/fake_cs.cfm (last visited Dec. 17, 2004).

[296] Andrew Hyland, Economic Impact of Smoke-free Policies on Restaurants and Bars (Nov. 2002) available at http://www.tobaccoscam.ucsf.edu/pdf/hyland.ppt (last visited Dec. 17, 2004).

[297] Tobacco Scam: How Big Tobacco Uses and Abuses the Restaurant Industry, Fake Economics – Sales Don’t Lie, available at http://www.tobaccoscam.ucsf.edu/fake/fake_sdl.cfm (last visited Dec. 17, 2004).