- The Washington Times - Wednesday, March 14, 2001

The village of Friendship Heights, Md., under intense legal pressure, has repealed one of the toughest smoking bans in the country just months after it took effect.

The Village Council passed a resolution Monday night acknowledging defeat in the face of two court rulings that prevent enforcement of the ban. Each time, a judge said Friendship Heights overstepped its powers as a special taxing district by enacting a ban on most outdoor smoking.

The resolution admits "there was a likelihood that the plaintiffs would prevail."

Village Manager Julian Mansfield said the council met privately with its attorneys before Monday's public meeting to decide what step to take.

They factored in the cost involved with an appeal and the risk that another ruling against the ban could endanger the similar efforts of other communities.

"It added up to a strategic withdrawal," Mr. Mansfield said.

The resolution is not officially repealed until the Montgomery County Council consents. Because Friendship Heights is a taxing district of 5,000 residents and not a municipality, all its laws must be approved by the County Council.

By a 5-4 vote, the County Council in December gave the Maryland village the right to fine repeat offenders $100 if they are caught lighting up in a public park or sodded area or on a sidewalk.

Discarding tobacco products like cigarette butts in public also was banned.

Smoking was not prohibited in vehicles, residential outdoor areas or private lawns, driveways or business areas. Two thoroughfares Wisconsin and Willard avenues were not affected because they are not maintained by the 34-acre village, which borders the District of Columbia.

The regulation, which backers said would be enforced by a security staff and accompanied by an education campaign, took effect Dec. 12. However, no one was ever fined.

Opponents yesterday declared victory over a ban they called invasive and unnecessary.

"It's not something the people wanted," said Cleonice Tavani of the 230-member Friendship Heights Village Civic Association. "We're very pleased they listened to us.

The civic association, in a meeting on Saturday, recommended the council repeal the regulation.

"Wisdom is always welcome, no matter how late it arrives," said Tim Maloney, an attorney for the plaintiffs and a former state lawmaker.

Village Mayor Alfred Muller, a physician, has championed the ban for years, and in 1996 it passed the Village Council. Adverse reaction and a less sympathetic County Council prompted local officials to table the matter until last year.

"We're doing this for public health reasons," Mr. Muller said after the County Council gave its approval three months ago. "We are trying to change the social norm."

Four residents quickly filed a lawsuit that challenges the authority of special taxing districts to enact far-reaching smoking bans. The suit claims the ban is pre-empted by state law and is unconstitutional.

Montgomery County Circuit Judge Nelson W. Rupp issued a temporary restraining order on Jan. 30, which prevented enforcement of the ban until the court could rule on the plaintiff's request for a preliminary injunction.

On March 2, Circuit Judge Durke G. Thompson issued a 16-page opinion granting the request.

County Council member Nancy Dacek, Germantown Republican and smoking ban opponent, predicted the issue would die in County Council chambers.

"There will be speeches made, but I can't imagine that the County Council will urge them to continue with this."

All seats on the Village Council are up for election May 14, including the seat held by the mayor.

Mr. Muller, meanwhile, still faces a charge of second-degree child sexual abuse. Last month, a 14-year-old boy accused the mayor of fondling him at the urinals in a basement rest room at the National Cathedral in Northwest D.C.

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