A judge has invalidated Montgomery County's blanket ban on smoking in county restaurants and bars, handing a major victory to tobacco industry groups who vigorously fought one of the mid-Atlantic region's strictest anti-smoking measures.

In an order issued Friday, Montgomery County Circuit Court Judge Ann S. Harrington found that the County Council violated several county regulations by passing the smoking ban as a health regulation. The council also defied the U.S. Constitution's equal protection clause by excluding private clubs from the ban, the judge ruled. Most importantly, perhaps, Harrington found that even as a health regulation, the county smoking ban ran counter to state law that allows smoking in businesses with licenses to sell liquor. Harrington found in favor of the plaintiffs, a group of Montgomery restaurants and the city of Gaithersburg, on all five complaints against the bill. "This is a vindication that the court at least looked at the law and didn't listen to the rhetoric," said Tom Humber, president of the Alexandria-based National Smokers Alliance, a group backed by tobacco companies that waged a television advertising campaign against the measure. "We hope that this decision is so sweeping and definitive that it will stop this nonsense here." Montgomery's ban, celebrated by national anti-smoking groups when it passed in March 1999, was not scheduled to take effect until Jan. 1, 2002. The delay was part of a compromise reached to push the measure through a sharply divided council, which approved the first total ban on smoking in the mid-Atlantic region on a 5 to 4 vote. The measure was vigorously promoted by local and national anti-smoking groups as an ambitious step toward cutting down on illness caused by secondhand smoke. But restaurant owners and their employees, backed by tobacco interest groups, said the law was overly intrusive and would undermine the local hospitality industry. About half of Montgomery's 1,403 restaurants already ban smoking. To avoid a county executive veto, the council convened as the Board of Health to adopt the measure as a health regulation. That move also had the effect of extending the law to independent municipalities within the county, despite vocal opposition from some of their elected officials. In a symbolic gesture, County Executive Douglas M. Duncan (D) vetoed the bill. Tobacco industry groups hope the court ruling, news of which reached the parties involved this morning, will help as they fight smoking regulations in other states. The National Smokers Alliance is now in federal and state courts fighting similar smoking bans passed in Dutchess County, N.Y., and Princeton, N.J. The decision also underscores the circuitous route the council took as it tried to pass a sweeping regulation without running afoul of existing law. In her ruling, Harrington said the council did not have a right to convene as the Board of Health without the county executive's approval. By doing so, she ruled, the council served in both a legislative and executive capacity in violation of the county charter. The council also failed to advertise the regulation to attract public comment as required by county law. As passed, the smoking ban excluded private clubs. Harrington found that this exclusion violated the Constitution's equal protection clause. "The county's asserted rationales for distinguishing between public eating and drinking establishments and those in clubs . . . is unavailing," she wrote. But perhaps the highest hurdle the council will have to clear in any appeal, now being considered by council members and staff, is the state law that limits a county's ability to regulate smoking. Harrington ruled that the county's attempt to get around these limits by passing the ban as a health "regulation" as opposed to a county "ordinance" is invalid. "My first words were, 'Oh, hallelujah,'" said Marcia Harris, president of the Maryland Restaurant Association, which has more than 300 members in Montgomery. "Not only our members but all [restaurant owners] in Montgomery County will be able to serve all of their customers. That's a wonderful thing for the hospitality industry."

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