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Maryland's highest court struck down Montgomery County's sweeping ban on smoking in all bars and restaurants today, issuing a terse, nine-page ruling that objected to the procedures the county used to institute smoke-free dining.
When it passed in 1999, the smoking prohibition was among the first of its kind on the East Coast, but it never took effect because of a court challenge from local bar and restaurant owners. In the intervening years, similar bans have passed in New York City, Delaware, Florida, and a number of local jurisdictions, although none in the Washington area.
Lawyers for the coalition of restaurants and taverns that fought the ban in Montgomery presented the Maryland Court of Appeals with a range of objections to the anti-smoking measure, but today's ruling stuck exclusively to procedural issues, and left unanswered whether such a ban could ever pass legal muster in Maryland.
As a result, even the victors in the suit felt less than satisfied by the high court's unanimous decision.
"I'm happy, but to be honest, I do feel like the court has wasted two years of our time for an opinion that doesn't stop the fight, or resolve any of the really important legal questions," said Erik S. Jaffe, who represented Anchor Inn Seafood Restaurant and 400 other plaintiffs in the case.
Montgomery County Attorney Judson P. Garrett, who argued the case for the county, said he too had anticipated an in-depth look into all of the thorny legal questions surrounding such a measure.
"Given the period of gestation, the baby was surprisingly small," Garrett said. "I mean, we thought, given the length of time they took, the court was really going through the issues and writing a lengthy analysis. We did not think we would lose on the very first point."
That first point deals expressly with the procedural gambit used by the Montgomery County Council to avoid a threatened veto from County Executive Douglas M. Duncan (D), who favored a law similar to the one in Howard County, which requires restaurants to create a separate, ventilated smoking section for their customers.
After spending months debating the proposed ban, the council remained narrowly divided, and the five-member majority lacked the votes needed to overcome Duncan's opposition. So the members decided to convene as the Board of Health, and pass the ban as a health regulation, which is not subject to a veto.
"The Montgomery County Council did not have the authority to act . . . without the participation of the County Executive," Judge John C. Eldridge wrote. "Consequently we need not and shall not express any opinion with respect to the other alternative [arguments]."
Anti-smoking activists vowed today to resume the battle in Montgomery County and said they believe there has been enough of a cultural shift in the past four years to make a ban more palatable to Duncan and to the council.
When it passed in 1999, the smoking prohibition was among the first of its kind on the East Coast, but it never took effect because of a court challenge from local bar and restaurant owners. In the intervening years, similar bans have passed in New York City, Delaware, Florida, and a number of local jurisdictions, although none in the Washington area.
Lawyers for the coalition of restaurants and taverns that fought the ban in Montgomery presented the Maryland Court of Appeals with a range of objections to the anti-smoking measure, but today's ruling stuck exclusively to procedural issues, and left unanswered whether such a ban could ever pass legal muster in Maryland.
As a result, even the victors in the suit felt less than satisfied by the high court's unanimous decision.
"I'm happy, but to be honest, I do feel like the court has wasted two years of our time for an opinion that doesn't stop the fight, or resolve any of the really important legal questions," said Erik S. Jaffe, who represented Anchor Inn Seafood Restaurant and 400 other plaintiffs in the case.
Montgomery County Attorney Judson P. Garrett, who argued the case for the county, said he too had anticipated an in-depth look into all of the thorny legal questions surrounding such a measure.
"Given the period of gestation, the baby was surprisingly small," Garrett said. "I mean, we thought, given the length of time they took, the court was really going through the issues and writing a lengthy analysis. We did not think we would lose on the very first point."
That first point deals expressly with the procedural gambit used by the Montgomery County Council to avoid a threatened veto from County Executive Douglas M. Duncan (D), who favored a law similar to the one in Howard County, which requires restaurants to create a separate, ventilated smoking section for their customers.
After spending months debating the proposed ban, the council remained narrowly divided, and the five-member majority lacked the votes needed to overcome Duncan's opposition. So the members decided to convene as the Board of Health, and pass the ban as a health regulation, which is not subject to a veto.
"The Montgomery County Council did not have the authority to act . . . without the participation of the County Executive," Judge John C. Eldridge wrote. "Consequently we need not and shall not express any opinion with respect to the other alternative [arguments]."
Anti-smoking activists vowed today to resume the battle in Montgomery County and said they believe there has been enough of a cultural shift in the past four years to make a ban more palatable to Duncan and to the council.
