Workplace smoking under attack Top state official prepares to issue emergency ban

In one of the most far-reaching attacks on smoking in the nation, a top Schaefer administration official said yesterday he intends to ban smoking in virtually every public and private workplace in Maryland.

Details of the regulations were still being drafted, but William A. Fogle Jr., the state's secretary of licensing and regulation, said the proposed prohibition will rely on his legal authority to protect the health and welfare of Maryland workers.


The proposal apparently would affect smoking in both indoor and outdoor workplaces, although it would not preclude business owners from setting aside spaces where smoking is permitted as long as they are not in work areas.

Gov. William Donald Schaefer's chief of staff, Paul E. Schurick, said the governor was "cautiously supportive" of Mr. Fogle's plan but wants to see the details first.


"The governor is not yet ready to embrace this proposal," he said.

Mr. Fogle said he hoped to put the ban in effect through emergency regulations, which could be ready for submission to a General Assembly oversight committee within the next week or two.

The Administrative, Executive and Legislative Review (AELR) Committee has authority to veto emergency regulations. But if it does so in this case, Mr. Fogle said, he will resubmit the ban through the more time-consuming, normal regulatory process -- which does not require legislative approval.

While local governments in Maryland and elsewhere have passed laws to restrict smoking in public places, no state has enacted such a comprehensive ban. And tobacco interests immediately vowed to challenge Mr. Fogle's authority to do so through regulation.

Bruce C. Bereano, a lobbyist for the tobacco industry, declared that neither federal nor state law gives Mr. Fogle authority to impose such restrictions. He called the proposal intrusive, anti-business and dictatorial.

"The department better be on sound legal ground because, if they're not, I'm going right into a courtroom," Mr. Bereano said.

Eric Gally of the American Cancer Society had the opposite reaction.

"We're ecstatic," said Mr. Gally, who also speaks for the Maryland Coalition on Smoking OR Health, a group that also includes the state medical society and the Maryland chapters of the American Heart Association and the American Lung Association. "This administration has proven time and time again that it truly and sincerely cares about the public health of its citizens."


Christopher Costello, a vice president and lobbyist for the Maryland Chamber of Commerce, said he was not worried about the proposal because he believes Mr. Fogle to be a reasonable man. "I can't believe he's going to do anything that would not be open for compromise and accommodation for smokers and non-smokers alike."

Explosion promoted action

Mr. Fogle said he was prompted to take such drastic action by an explosion in a Baltimore school Sunday that killed three maintenance workers. The fire was set off when fumes from a solvent used to strip a gymnasium floor were ignited by a match used to light a cigar.

Aside from safety considerations, Mr. Fogle said, state officials are concerned that Maryland has the highest cancer rate in the nation, a grim statistic he said could be attributable in part to workers inhaling the second-hand smoke of others.

"I just said it is time we have a rule saying 'no smoking in the workplace,' " he said. "It's hazardous as hell."

Once drafted, the regulations will go to the AELR committee for consideration. Del. Kenneth H. Masters and Sen. Paula C. Hollinger, two Baltimore County Democrats who co-chair the panel, said the critical question will be whether Mr. Fogle can demonstrate that his department has the legal authority to issue such regulations.


Mr. Fogle contended he has authority under the Maryland Occupational Safety and Health program, which enforces federal workplace safety rules in Maryland. He said Assistant Attorney General Francis X. Pugh, chief legal counsel to his department, is drafting the regulations.

Hearing to be held

Senate President Thomas V. Mike Miller Jr., a Prince George's County Democrat, said a full public hearing would be held on the proposal before any action is taken by the AELR committee. He also made clear his own reservations about government intrusion into the workplace.

"I don't smoke, and none of the people in my office smoke, but I would defend the right for an individual businessman or woman to make that choice for themselves," said Mr. Miller, who has a law practice in Prince George's County.

Thomas Lauria, a spokesman for the Tobacco Institute in Washington, said Mr. Fogle's proposal is unprecedented.

No other state or federal agency that regulates occupational safety has banned smoking in the workplace, he said.


"This regulatory action is the first of its kind in the United States, and it poses some dangerous precedents," Mr. Lauria said. He said the federal Occupational Safety and Health Administration has declined to take any action on workplace smoking and said, "For Bill Fogle to second-guess federal OSHA and ban smoking by decree is very undemocratic and unfair."

Mr. Fogle said he was only interested in prohibiting smoking in the workplace itself and said if employers wish to establish separated smoking areas for workers, they can. He said the ban would apply to small offices, such as a law office, for example, just as it would to large offices or plants. But he acknowledged that inspection or enforcement would be unlikely unless there was a complaint.

Bars and restaurants also would be covered, but he said the ban would only apply to the workers -- not to the customers.

Mr. Lauria said that could create bizarre results.

"Under Mr. Fogle's proposal, a bartender could be arrested for smoking a cigarette in front of a customer who is smoking a cigarette," he said. "That's patently absurd."



* Smoking would be banned in every workplace in Maryland.

* Designated smoking areas would be permitted as long as they were not work areas.

* Workers in bars and restaurants could not smoke, but their customers could.