Maryland: Court Snuffs Montgomery's Smoking Ban

Washington Post ^ | 5-2-03

[SheLion]

Maryland's highest court has ruled that the regulation banning smoking in Montgomery County is invalid.

[SheLion]

YAHOOOOOOOOOO

[SheLion]

The Court of Appeals delivered the opinion today after for deliberating about two years.

The Montgomery County Council enacted the ban four years ago, but it never took effect while the legal challenge was pending.

The court ruling upheld a Circuit Court decision supporting restaurant operators who challenged the ban. The high court agreed that the county council acted improperly when it tried to bypass a veto from the county executive by creating a health regulation.

The opinion said the council can't act as a Board of Health without the participation of the county executive.

[IronJack]

Not much universality in that ruling. The precedent won't help overturn similar bans elsewhere.

[Conspiracy Guy]

Good for those folks.

[SheLion]

Not much universality in that ruling. The precedent won't help overturn similar bans elsewhere.

Well, it sure is helping the smokers in MAINE. At least until they try to come up with this again. But we are safe, so far!!!!

[IronJack]

I don't mean to detract from the local victory. I was just hoping for something at a constitutional level, something that would invalidate this prohibitionist nonsense everywhere.

Smoke 'em if you got 'em.

[supercat]

I don't mean to detract from the local victory. I was just hoping for something at a constitutional level, something that would invalidate this prohibitionist nonsense everywhere.

I'm not familiar with the fifty state constitutions, but I don't think there would be any constitutional problem with a ban on smoking in restaurants or bars. To be sure, such a ban may be a really bad idea, but state legislatures generally have very broad powers. If a legislature wanted to pass a law requiring waitrstaff to read allowed the entire menu, including prices, to all customers before they were allowed to order (forcing the customers to listen to the whole thing), it would be within their authority to do so even though it would put most restaurants out of business but it would still be within legislative authority.

[Mears]

Every little victory is something to be celebrated.

I just hope the Boston ban,which starts this week,falls flat on it's face.

Mayor "Mumbles" Menino is always saying that he wants Boston to be a "world class city',well the fact that the Democratic National Convention is coming to Boston for the next election just shows it will never be world class.

[Bahbah]

Nice, but pretty narrow unfortunately.

[maxwellp]

Any smoker will tell you that one of the BEST cigarets is the one smoked after a meal. As a smoker, I no longer go out to dinner in a public restaurant. Gone are the days when one could smoke a cigaret with a cocktail before dinner and then enjoy an after-dinner cigaret. And I miss dining out. I could forego the cigarets dining out, but why should I when I can enjoy my cigaret pleasure at home. We also refuse invitations to dinner offered by friends who do not allow smoking in their homes. Some friends are upset, but I tell them "You set the rules for your home and I don't like them, so why should I go to your home? Invite non-smokers." In the meantime, I once asked a 10-year old child if there were drugs in his school. His response, "Yeah, sure". Go figure.

[Reaganwuzthebest]

Not a smoker but I think this is good news for the rights of businesses to make their own policies on this matter. If people don't like smoking in a restaurant, they have every right to go somewhere else.

[joyce11111]

Good news.

I wish all 50 States would abolish the No Smoking ban.

It has hurt the Pub owners here in Oregon.

We quit going out to dinner, when the ban went into effect. So we eat at home, and, smoke 'em if we got 'em.

[Walnut]

I always loved Maryland!

[sauropod]

Y'all still need to smoke yer butts in the backyard!

[sauropod]

Don't besmirch this. Anything at all is good news in the Land of Peasant Living!

[IronJack]

I don't know. I suspect one could mount a rigorous challenge to these kinds of bans. After all, under what authority does the state regulate such behavior? There is no federal constitutional authority, at least explicitly. And since most state constitutions are modeled after the national charter, I would suspect there is no overt empowerment of government to regulate "vices."

I contend that the state would have to present a compelling interest that outweighed the loss of liberty. And that would call into question the whole issue of second-hand smoke, which has never been scientifically validated.

Such regulations also collide with the "penumbral" right to privacy -- you know, the one that allows a woman to murder her children? In this case, it not only interferes with the patron's right to enjoy a cigarette, it negates the right of the owner to establish the rules of his own property.

I'm not familiar enough with precedents regarding public accommodation to know how substantial a case based on those doctrines would be, but I would think one could be made.

[Great Dane]

The opinion said the council can't act as a Board of Health without the participation of the county executive.

I suspect they will sneak something else in, via the back door, but for now it's a victory.

[supercat]

And since most state constitutions are modeled after the national charter, I would suspect there is no overt empowerment of government to regulate "vices."

State constitutions are generally not modeled after the federal one. Whereas the federal constitution was designed to provide an "interface" among many largely-independent states, states were intended to be the central form of government power.

Whereas the federal constitution is constructed to impart only those specific powers granted (a limitation largely ignored today) state constitutions generally grant legislatures all powers not expressly forbidden them. Huge difference at least in theory (though given the state of today's federal government, not so much in practice).

[steve50]

I was just hoping for something at a constitutional level, something that would invalidate this prohibitionist nonsense everywhere.

The opinion said the council can't act as a Board of Health without the participation of the county executive.

Looks like the court may have upheld it if the county executive had been on board. In a backhanded manner they may have just set precedent to allow a future ban, although I can't see how a county executive would have any more weight on the matter than the council. Damn control freaks