Maryland's highest court was the scene yesterday of the latest skirmish in the war between tobacco interests and local governments.
On one side of the domed Annapolis courtroom stood Bruce C. Bereano, the flamboyant lobbyist for the Tobacco Institute and lawyer for two cigarette vending machine companies.
On behalf of Allied and D.C. vending companies, he urged the Court of Appeals to overturn laws that severely restrict the placement of cigarette machines in Takoma Park and Bowie.
To his left stood his legal opponent, Angus Everton, who represents the two cities.
Mr. Everton defended the ordinances, which prohibit cigarette vending machines in places that are "generally" accessible to children -- such as restaurants -- and are not monitored. About a dozen machines are affected.
Studies show that most adult smokers picked up the habit when teen-agers. Some middle- and high-schoolers say it's easy to make illegal purchases at cigarette vending machines because no one is around to stop them.
Mr. Bereano argued that local governments such as Bowie and Takoma Park do not have the power to regulate vending machines. Only the state government may do that, he said.
If counties and cities could control the location of vending machines, he said, then sooner or later they would try to restrict all sales of cigarettes.
"Local governments will go ahead to control over-the-counter sales of cigarettes. You will be allowing localities to totally interfere with the sale of a legal product," he warned the seven maroon-robed judges.
The ability of local governments to restrict smoking and cigarette sales is a major concern for the tobacco industry. It once fought most of those battles in Congress and state legislatures, where it maintains a strong presence and successful record.
In recent years, however, the anti-smoking movement has focused on local laws, forcing tobacco lobbyists to engage in expensive guerrilla warfare in cities, counties and towns where local activists may have the upper hand.
Mr. Everton, the attorney for Bowie and Takoma Park, portrayed the ordinances as a means of protecting public health -- a power that local governments have had "since time immemorial."
"I truly believe there is no conflict [with state law] because the state has made no effort to regulate in this area," Mr. Everton said.
He disputed Mr. Bereano's claim that only the state legislature may decide whether to restrict or ban cigarette vending machines.
Mr. Bereano had cited his record of defeating cigarette vending machine bills in the General Assembly in the past five years to bolster his case.
Only a month ago, Mr. Bereano told the court, the legislature killed anti-cigarette legislation introduced by Gov. William Donald Schaefer. That bill contained a provision -- which Mr. Bereano vigorously fought -- that would have specifically allowed local governments to adopt stricter laws than the state.
Mr. Everton turned his opponent's argument around. If the legislature believed Bowie and Takoma Park were out of line, Mr. Everton said, then it would have outlawed their ordinances.
The cities won the case in a lower court in September, when Prince George's County Circuit Judge James P. Salmon upheld their ordinances.
JTC But Mr. Bereano recently persuaded another Circuit Court judge to overturn a Montgomery County law banning nearly all of the 1,000 cigarette vending machines there. The county is appealing the decision.
Mr. Everton said the Montgomery case is different because it involves a much tougher ordinance than do the ones in Bowie and Takoma Park.