- The Washington Times - Tuesday, May 13, 2003

The Montgomery County Council, following the lead of cities such as New York and Boston, will attempt a second time to ban smoking in and near restaurants.

The smoking ban may extend to outside seating areas and private clubs, which would make Montgomery County’s antismoking laws among the country’s strictest.

“I really think the people in Montgomery County demand this kind of an environment. It’s become a way of life for most folks,” said Nancy Floreen, at-large Democrat and one of the bill’s four sponsors on the council.

The council members will sponsor a bill banning smoking in restaurants and bars less than two weeks after an antismoking resolution was struck down by the state’s highest court, the Court of Appeals.

The legislation is expected to pass, but restaurant owners are likely to challenge the crackdown in court.

The bill will need a majority of five votes to pass, and six votes to override any veto by County Executive Douglas M. Duncan.

Philip Andrews, District 3 Democrat, another of the bill’s sponsors, said he thinks Mr. Duncan is “keeping an open mind.” But Mr. Duncan did not comment yesterday on whether he would veto an outright ban of smoking in restaurants. Mr. Andrews said he was optimistic about Mr. Duncan’s intentions.

“He seems to recognize that this is no longer as controversial as it was. In fact there’s strong public support for it,” Mr. Andrews said.

After the first antismoking resolution was struck down earlier this month, Mr. Duncan issued a statement.

“For some time, there has been fundamental agreement in our community that there is a need for increased restrictions on smoking in restaurants. I look forward to working with the County Council to craft an appropriate law that will achieve this public-health goal while withstanding any future legal challenges,” Mr. Duncan said.

The council, reconvening as the Board of Health, will also review a resolution tomorrow banning smoking in restaurants.

Action taken by the council as the health board remains immune to Mr. Duncan’s veto despite legal maneuvers over that issue, members say.

“We’re covering all the bases,” Mrs. Floreen said.

The original bill banning smoking passed by a 5-4 vote in 1999 and was vetoed by Mr. Duncan. The council then convened as the Board of Health and passed a resolution banning smoking, outside the executive’s veto power.

But several Montgomery County restaurants filed a lawsuit.

In June 2000, a circuit court judge ruled that the council could not act as the Board of Health without the county executive present. On May 1, a Court of Appeals judge upheld that ruling, which covered just the 1999 case.

Also in 2000, the council passed a law stating it could act as the Board of Health without the county executive present. With that legal obstacle out of the way and six of the council’s nine members in favor of a ban, interviews with The Washington Times show, smokers probably will be unwelcome in Montgomery County restaurants.

Montgomery County has no stand-alone bars.

The smoking ban will be challenged again, though, said the plaintiffs in the first lawsuit, who plan to sue again.

“We’re going to fight through whatever legal means we can,” said Selby Scaggs, owner of the Anchor Inn Seafood Restaurant. Mr. Scaggs represented restaurants involved in the first lawsuit.

“It seems outright ignorant why they would try to pass the same legislation that was already rejected,” he said. “We want to maintain that it’s a choice. If you have a choice to work here, or to sit in the smoking area, it’s an adult decision.”

Council members in favor of the ban say smoking is a health hazard for restaurant customers and employees.

If the ban becomes law, Montgomery County would join 125 other jurisdictions, including New York City, Boston and Los Angeles, where smoking in restaurants has been banned.

Some restaurant owners and managers have expressed fear that a smoking ban would reduce business drastically.

The New York Post yesterday reported that of 50 New York City restaurants surveyed, 34 reported business down since the smoking ban there took effect in April. Boston’s ban took effect earlier this month.

Some New York City establishments reported drops in business as drastic as 50 percent and said they had laid off some employees or were considering doing so.

Mrs. Floreen said that didn’t affect her resolve to ban smoking in Montgomery County restaurants.

“I think that’s Chicken Little speaking, at least in Montgomery County. I do not believe the sky is falling or will fall by an action to provide our citizens with a safe environment,” she said.

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