Montgomery Council to Appeal Ruling on Smoking Ban
The Montgomery County Council decided yesterday to appeal a judge's ruling striking down the county ban on smoking in bars and restaurants, the strictest measure of its kind in the mid-Atlantic region.
The council's action came on a 6 to 3 vote after a closed-door session. The panel has until July 15 to file the appeal with the Maryland Court of Special Appeals, which could take a year to rule on the matter.
"This is a broad-ranging opinion and [it will] impact a number of areas," said council President Michael L. Subin (D-At Large), who voted against the smoking ban last year but supports the appeal because he said the ruling is a "strike at local government and self-governance."
The smoking ban was scheduled to take effect Jan. 1, 2002. The restaurant industry and national smokers' rights groups opposed the measure saying it would hurt business and restrict freedom of choice, even though more than half of Montgomery's 1,403 restaurants already prohibit smoking. Anti-smoking advocates hailed the ban as a significant step toward protecting the health of nonsmokers.
To avoid a promised veto by County Executive Douglas M. Duncan (D), who favored a compromise measure, the council convened as the Board of Health in March 1999 to pass the smoking ban as a health regulation. In doing so, the council extended the ban to every municipality in the county while avoiding a Duncan veto. A group of Montgomery restaurants and the city of Gaithersburg then filed suit challenging the regulation.
In a 12-page ruling on the lawsuit last week, Montgomery County Circuit Court Judge Ann S. Harrington found that by passing the measure as a health regulation the council acted in both executive and legislative roles in violation of the county charter, undermined the Constitution's equal-protection clause by excluding private clubs from the ban and ran afoul of state law that allows smoking in businesses with liquor licenses.
The judge also found that the council did not properly advertise the regulation to ensure public comment. The most puzzling aspect of the ruling, county lawyers said, was the determination that the county executive has a role on the Board of Health. Subin said this afternoon that, if left unchallenged, the ruling could call into question every county Board of Health decision since 1970.
Tom Humber, president of the Alexandria-based National Smokers Alliance, said the council is pursuing an appeal "to save face." The alliance, once financed by tobacco giant Philip Morris, is paying the legal fees for the restaurant plaintiffs.
"After they were embarrassed before the county court, now they want to repeat that in front of the appeals court," he said. "We intend to accommodate them every step."