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Excerpts from: Outdoor Smoking Restraints Repealed

By Jo Becker (washingtonpost.com)  [03/14/01]

The village of Friendship Heights has repealed a smoking ban considered the toughest in the nation, concluding that continuing
the legal fight to enforce the ban after two adverse court decisions could harm the national movement to take the war on
smoking outdoors.

The Village Council, which gained international attention last year when it banned outdoor smoking in public places such as
parks and sidewalks, voted unanimously Monday night to repeal the ban.

The vote came after a Montgomery County Circuit Court judge temporarily blocked the village this month from enforcing the
ban. Judge Durke G. Thompson said that as a special taxing district, the village had no authority to exercise police powers the
law reserves for true municipalities.

The judge's narrow ruling did not address arguments by opponents that such bans are unconstitutional, and he praised
Friendship Heights for attempting to "protect its citizens and others from a significant health risk." It was the second legal blow
to the ban this year; another judge issued an emergency order in January blocking the village from enforcing the ban.

Tobacco companies and their opponents have closely followed the legal wrangling over smoking in Friendship Heights, a village
of about 5,000 people just over the District border.

The interest stems from a shift in strategy on the part of smoking foes. After years of fighting to restrict smoking in workplaces,
restaurants and bars, anti-smoking forces are increasingly looking at the outdoors as a battlefront. Friendship Heights is not the
first jurisdiction to take steps to restrict outdoor smoking. Others have banned smoking in stadiums and parks or at beaches.
But the village's ban was by far the most sweeping.

Of the four plaintiffs who took the ban to court, several were associated with the Cato Institute, a libertarian think tank. Their
attorney, Timothy F. Maloney, was pleased with the decision to drop the fight.

Friendship Heights Mayor Alfred Muller said the village decided not to appeal the ruling because he and others did not want the
case to set a bad precedent that would prevent true municipalities from following the village's lead.

"From a public health standpoint, our decision to repeal the regulations gives others throughout the state and the country the
right to follow up on this if they wish," Muller said. "If we had appealed, there was certainly the possibility that a higher court
could have, in a broader, more comprehensive decision, struck down not just us but anyone's ability to do something like this."

John F. Banzhaf, executive director and chief counsel of Action on Smoking and Health, has fought the tobacco companies for years. He called Friendship Heights' decision to back off "a very minor setback from a national point of view."

Nationally, he said, five dozen municipalities have enacted some form of outdoor smoking restriction. A ban in Mesa, Calif., comes close to being as strict as the Friendship Heights ordinance, he said.

"The judge's decision didn't involve smoking at all. It was based solely on the fact that this unique municipal entity apparently can't regulate conduct, whether that's smoking or spitting on the sidewalk," Banzhaf said. "This movement to ban outdoor smoking is going to continue to spread, not only through ordinances but also through private businesses doing the same thing."