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Smoking ban opens fresh pack of questions


Maryland has pushed itself to the forefront of a national debate by banning smoking in almost every indoor workplace, but questions remain as to how far the ban really goes.

The regulation, which takes effect Aug. 1, clearly applies to offices, restaurants, bars, factories and stores. But what about hotel and motel rooms?

The question is important because some business officials claim that Maryland's tourist industry -- and economy -- will suffer if people cannot smoke in hotels.

The ban's architect, State Licensing and Regulation Secretary William A. Fogle Jr., said yesterday the regulation both does and does not affect hotels. Guests could continue to smoke in their rooms, he said, but a hotel employee could refuse to clean the room or repair the shower while a guest was smoking in there.

The regulation -- the toughest of its kind in the country -- is designed to protect employees from the health hazards of second-hand smoke in indoor workplaces.

Baltimore lawyer George A. Neilson, who is representing companies that plan to challenge the ban in court, said the regulation is even more far-reaching than Mr. Fogle claims.

The one-page regulation specifically includes hotels. A smoky room is a smoky room, Mr. Neilson said, so hotel employees could refuse to work there whether or not its occupant was smoking at that particular moment.

The state has put hotels in the position of having to forbid smoking if they want all rooms to be cleaned regularly, said Thomas Shaner, executive director of the Hotel and Motel Association of Greater Baltimore.

Mr. Neilson said he will file suit as soon as tomorrow to stop the regulation from ever taking effect. He is representing about 10 employers, whom he declined to identify, a half-dozen trade associations and Philip Morris Co., the cigarette manufacturer.

Philip Morris contends that Mr. Fogle's agency has failed to prove that second-hand smoke poses a significant health risk and that an outright ban is necessary, Mr. Neilson said. Maryland also has failed to show why its occupational safety and health officials should regulate workplace smoking before the federal government has acted, he said.

Thirdly, the state failed to study adequately the regulation's economic impact, as required by statute, Mr. Neilson said.

Mr. Fogle denies those allegations.

Although the regulation will not be formally published until tomorrow, a copy obtained by The Sun shows that its wording has remain unchanged since its last official publication in April. It would allow smoking only in specially equipped and enclosed indoor lounges with ventilation systems that exhaust directly to the outdoors. Employers, however, would not have to provide any smoking lounge if they found it costly or impractical.

Mr. Fogle acknowledged that employers probably do not have enough time to create a smoking room before Aug. 1. Those businesses should tell workers to go outside to smoke until the room is ready, he said.

Mr. Fogle said his agency will not be looking for rule-breakers. "You can't be a Gestapo. You can't be in a position where you're hounding people every day of their lives," he said."

Rather, he said, the state will respond to complaints from workers. It will first try to work with employers who break the regulation, rather than immediately seeking to fine them. "We're not going to jump on everyone Aug. 1," Mr. Fogle said.

His department will provide free consultation services to businesses that want to know how to comply or whether their smoking lounges meet the ventilation requirements, he said.

Employers with persistent or serious violations could face fines up to $7,000 for each violation. Mr. Fogle said he would not consider a violation to be serious unless it posed a fire or explosion hazard, or hurt an employee with serious breathing problems.

Mr. Fogle said his agency is seeking to be reasonable, while its opponents are trying to portray the regulation as more intrusive than it really is.

For example, critics say, the regulation would affect people who want to hire a caterer for a party in their homes. Their house would become a workplace for the caterers, so the hosts would have to keep their guests from smoking, according to that argument.

Mr. Fogle, however, said he has no control over homeowners in that situation.

He said he also will not punish restaurants when their customers smoke, provided the establishment has posted "no smoking" signs and otherwise made a good-faith effort to comply.



* Any indoor workplace.

* Vehicles used by two or more employees riding together on business.

* Employee lounges, restrooms, cafeterias and meeting rooms.

* Restaurants, bars and taverns.

* Sleeping rooms in hotels and motels*.

* Conference and convention facilities.


* Tobacco stores.

* Vehicles occupied by one employee on business.

* Laboratories conducting research on smoking.

* Specially equipped lounges with separate ventilation systems.

* Outdoor workplaces.

*Will prohibit smoking only while a hotel employee is inside the room, according to the head of the state agency that developed the regulations.

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