Smoke statute change backed

The Baltimore Sun

Del. Joseph J. "Sonny" Minnick co-owns a tavern in Dundalk, and he said he has lost business since the state banned smoking in bars and restaurants.

Now, at the request of fellow tavern owners, he is backing a bill that would create an "outdoor" exemption for Baltimore County bars and restaurants. This week, the proposal won the support of a state Senate committee, alarming health advocates.

The measure would allow smoking on enclosed decks and patios, in tents or in other outdoor structures of bars and restaurants, and it would apply only to Baltimore County. Minnick doesn't have an enclosed deck, patio or tent, but he said he'd like to have one to make smoking customers more comfortable.

"I just thought it was a little ridiculous - overkill," Minnick said, for the state Department of Health and Mental Hygiene to extend the smoking ban to outdoor decks or canopies if they have walls or flaps to keep out rain and wind.

Minnick, who represents Dundalk, said he introduced the bill at the behest of tavern owners. He said they want to provide some protection from the elements for their patrons when they go outside to take a puff.

"It is a real inconvenience for their customers to go outside and stand on the sidewalk," said Sen. Norman R. Stone Jr., a Baltimore County Democrat who is the sponsor of the Senate bill. "Most people didn't believe that the regulations would include a tentlike structure or an awning where you could put down the sides."

Baltimore County Executive James T. Smith Jr., state health officials and the state association of county health officers oppose the bill, as do health advocacy groups such as the American Heart Association and American Cancer Society.

"We worked so hard for so many years to pass a wonderful Clean Indoor Air Act for the state," said Michaeline Fedder of the Heart Association. "Anything that would dismantle anything built into that bill would be horrible."

Minnick said his establishment, Minnick's Restaurant, a bar and catering hall at 7100 Sollers Point Road, has a small canopy over one entrance that he'd like to enclose for the benefit of smoking customers. He said legislators from Baltimore City and two Southern Maryland counties have approached him about adding their jurisdictions to the bill.

"It has hurt business," Minnick said of the smoking ban. He recalled one couple in particular that stopped frequenting his bar after the ban took effect.

"They've come back," he added, but patrons and bar owners are still questioning why they must go outside to light up.

Minnick said it is perfectly proper to sponsor a bill that would affect his own business.

"It happens all the time here," he said. "Nurses put in bills for nurses, doctors put in bills for doctors, lawyers put in bills for lawyers. Why can't business owners put in bills for business?"

The state's legislative ethics law does not forbid Maryland's part-time lawmakers to vote on or sponsor bills that would affect their livelihoods. Only if the impact of the measure being voted on is limited to the legislator, spouse or employer is the lawmaker required to abstain.

Minnick and Stone said they would like to amend their bills to say that no food or drink could be served in the enclosures set up outside bars and restaurants, and to allow their use only from Dec. 1 through March. The rest of the year, one or more sides of the structures would have to be open to the air.

The House Economic Matters Committee has yet to act on Minnick's bill, but those amendments were not on the bill when it cleared the Senate Finance Committee. The final vote to recommend the bill's passage was 6 to 5, but only after Sen. Catherine E. Pugh, a Baltimore Democrat who had originally voted against recommending the bill, switched her vote.

Pugh attributed her switch to confusion over the original vote, but she would not explain why she voted for the bill in committee.

"I'll probably vote against it," she added, but then backtracked when asked why she would vote against it on the Senate floor. "We'll see what happens," she concluded.

Sen. Delores G. Kelley, a Baltimore County Democrat, said she opposes the bill.

State regulations permit smoking on decks or other semi-enclosed outdoor structures, as long as at least one side is open to the air, Kelley said.

She said she fears the Baltimore County measure would begin to erode the protections from secondhand smoke provided to waiters and patrons by the ban, which took effect Feb. 1.

"The people who were opponents [of the ban], who didn't worry about secondhand smoke ... see it as a second chance," Kelley said.

Baltimore adopted its own ban on smoking in public places before the legislature acted to make it statewide, so even if the county bill were amended to include the city, it's not clear whether it would have any effect.

Eric Gally, lobbyist for the Cancer Society and Heart Association, said allowing Baltimore County establishments some relief from the smoking ban would lead to pressure to extend the exemption across the state. The fear of businesses in neighboring jurisdictions getting a competitive edge from local smoking bans was what tied up the issue for years, he said.

"We don't want to keep refighting the fight," he said. "The legislation that passed was designed to maintain a level playing field for everybody."

Gally pointed out that local health officers can grant waivers for establishments that can demonstrate that the ban has hurt their business. But he said that in other states and localities that imposed bans, business rebounded within six or eight months.

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