Smoking Ban Is Near Certainty

Smoking Ban Is Near Certainty

How long will it be in the courts?

Fred Berman, co-owner of the Hunter’s Inn on River Road in Potomac Village is adamantly opposed to Montgomery County’s proposed smoking ban.

“I have a lot of customers who smoke and drink,” Berman said.

Berman is not alone, virtually every member of the county’s restaurant community who has spoken out is opposed to the ban. Hunter’s Inn has a non-smoking dining room separate from its bar and pub.

Smoking would be allowed to continue in outdoor seating areas and private clubs.

While the restaurant industry may oppose the ban, many came to speak in favor of the measure, which is virtually guaranteed to pass since five of nine County Council members have signed on as sponsors.

“We expect restaurants to serve pure food and clean water, we should similarly expect clean air,” said resident Robert Nelson at a June 12 public hearing in front of County Council.

Some of the most compelling testimony against the ban was given in an open letter written by Alice Helm of Bethesda and presented to council by her husband, Lou Helm because his wife is too ill.

“This is an issue of killing people,” wrote Alice Helm. “I never smoked. However, for many of my 75 years I inhaled carcinogens borne by second-hand smoke in restaurants … in elevators, at meetings, on airplanes, in stores. Health experts say that’s probably why I now have fourth-stage lung cancer that also has spread elsewhere in my body.”

Restaurateurs believe that the ban will drive smokers to establishments in neighboring jurisdictions, such as Prince George’s County, which does not have such a ban.

“It would be OK if they did it for the whole state,” Berman said.

Council members in favor of the ban have noted that while there is an initial dip in revenues, after two to three years, business comes back to pre-ban levels.

But in an industry with razor-thin profit margins, even two years is too long, say some. “I’d be out of business by then,” Berman said.

Some restaurant employees, who the ban is designed to protect, oppose the measure. “The smoking section always makes the most money,” said Stacey Brooks, a bartender at the Anchor Inn at the June 12 public hearing.

While the council listened to everything there was to be said on both sides of the issue, the fate of the bill is not in question. Five members of the nine-member Montgomery County Council have co-sponsored the legislation [Andrews (D-3), Knapp (D-2), Perez (D-5), Floreen (D-At Large), Leventhal (D-At Large)] making its passage a virtual certainty. While County Executive Doug Duncan (D) vetoed the bill when it was first passed, in 1999, he has recently indicated that he may not be as opposed to it as he once was. A sixth vote would be necessary to override any veto.

Councilmembers’ discussion about the bill in the meeting of the Health and Human Services committee on June 16 centered on how to ensure the bill will be able to withstand the expected legal challenge.

“It will go to the Court of Appeals, its just a question of when,” said Councilmember Steve Silverman (D-At Large).

The committee was concerned that the bill’s exemption of private clubs may violate the equal protection clause of the U.S. Constitution. However, in the state’s smoking legislation, there is a section that implies that while local governments can enact more restrictive laws, they can do so only for public places.

The committee passed an amendment that states that if the exception for private clubs is found to be unconstitutional, then the law should apply to them as well.

“We are saying that it is the intent of the Montgomery County Council that it apply broadly,” said Councilmember Tom Perez (D-5).

The bill goes into effect too quickly, Silverman said. As written, the bill would take effect 91 days after enactment. “I don’t believe our smaller restaurant establishments are capable of turning on a dime,” he said.

However, Committee Chair George Leventhal (D-At Large) expects the legal challenge, which could drag the case out for several more years, will likely provide sufficient transition time.

Several speakers noted that 90 percent of county residents do not smoke.

“The tide, here, is moving in a fairly clear direction,” Leventhal said. “It would seem to me that the handwriting is on the wall, and that restaurants should get the message.”