Cigarette vending machine companies take 2 towns, Montgomery Co. to court


ANNAPOLIS -- Local ordinances banning all cigarette vending machines in Montgomery County and keeping them away from minors in the Prince George's towns of Bowie and Takoma Park are unconstitutional and violate both state and federal laws, a pair of lawsuits charged yesterday.

The suits, filed in the Montgomery and Prince George's circuit courts, contend that the ordinances are pre-empted by and conflict with state law, affect the financial well-being of other jurisdictions and are discriminatory against vending machine operators.

But officials in all three jurisdictions expressed confidence yesterday that their respective ordinances will pass constitutional and legal muster, and several described the lawsuits as a desperate attempt by vendors and the tobacco industry to slow a growing public trend against smoking.

"We looked at those issues. We feel very sure that counties have the right to regulate, to protect their residents' health and safety, and that's what the county did here," said Michael Faden, senior legislative attorney for the Montgomery County Council. That council approved the cigarette machine ban on a 9-0 vote in July but delayed its effective date until May 1, 1992, to provide time for existing annual machine licenses to expire, he said.

The suits to overturn the ordinances were filed yesterday on behalf of Allied Vending Inc. of Beltsville, D.C. Vending Co. Inc. of Washington and T. D. Rowe Corp., trading as Baltimore Cigarette Service Inc. of Glen Burnie. The firms are represented by Annapolis lawyer Bruce C. Bereano, who also is legislative lobbyist for the Maryland-D.C. Vending Association Inc. and the Tobacco Institute in Washington.

The firms manage about 1,300 cigarette machines in Montgomery County, about eight in Bowie and only one or two in Takoma Park, the lawyer said. He said the ordinances would pose a financial hardship on his clients and inconvenience adults who choose to smoke.

In addition to the issue of whether the county and the two municipalities have the legal authority to enact such ordinances, the lawsuits contend that other jurisdictions will suffer financially because the ordinances could reduce consumption, thus cutting into state tax revenue collected on cigarettes and redistributed statewide.

"Why should Montgomery County have it both ways?" Mr. Bereano asked. He said the county wants to ban cigarette vending machines, yet willingly shares in the revenue distributed from taxing cigarettes sold elsewhere in the state, including those in vending machines.

Takoma Park Councilman Hank Prensky said state law already prohibits selling cigarettes to minors and described the city ordinance he sponsored as merely a means of improving enforcement of that law.

"The tobacco industry is struggling to come up with a strategy, faced with the fact less people are smoking," he said. "They failed miserably at the federal level . . . and are losing all over the country at the local level. So, they've taken the middle ground and are trying to head it off at the state."

Robin F. Shaivitz, a legislative lobbyist who represents the American Cancer Society, was among those who tried unsuccessfully early this year to persuade Maryland's General Assembly to enact a statewide ban or a restriction on cigarette vending machines similar to those in Montgomery County, Bowie and Takoma Park.

"The tobacco industry is fighting for its life, and it is going about this in any way it can," Ms. Shaivitz said, suggesting that tobacco interests tell state officials regulation is a local or federal matter while they tell local officials it is a state matter.

"This state and many other jurisdictions are becoming extremely conscious of the health hazards of cigarettes, especially in the hands of young people," she said.

Susan Silber, city attorney for Takoma Park, predicted the lawsuits would backfire and prompt the legislature to enact such restrictions statewide.

But Mr. Bereano argued that "kids are not buying cigarettes out of vending machines. [Machines] are far more costly. They're buying them at 7-Elevens and grocery stores."

Challenged ordinances

Three local ordinances challenged in court yesterday:

MONTGOMERY COUNTY (enacted July 2, 1991)

Bans all cigarette sales in vending machines countywide after April 30, 1992.

Maximum criminal penalty: $1,000 fine and/or six months in jail; maximum civil penalty: $400 fine for first day of violation and $750 fine for each subsequent day.

BOWIE (enacted May 15, 1991)

Requires cigarette vending machines to be licensed by city of Bowie and not accessible to minors.

Possible fine: $100 for first day of violation, $400 fine for each subsequent day.

Enforcement pending adoption of administrative regulations.

TAKOMA PARK (enacted Oct. 1, 1990)

Requires cigarette vending machines to be licensed by city of Takoma Park and not generally accessible to minors.

Possible fine: $75 fine for first day of violation and $150 fine for each subsequent day.

Not being enforced because city is awaiting machine license information from state.

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