Maryland Extends Smoking Ban to Restaurants and Bars

Posted: May 24, 2007

Maryland Governor Martin O'Malley, on May 17, 2007, signed the Clean Air Act of 2007, extending the state's smoking ban to bars, restaurants, and private social clubs such as the American Legion. Maryland's smoking ban in office buildings and other indoor workplaces, except for bars and restaurants, has been in effect since 1995. The new law, effective February 1, 2008, also establishes, for the first time, civil penalties for noncompliance. The Maryland Senate passed the bill 31-16, and the House of Delegates approved the bill with a 100-40 vote.

Who is affected by the change?

Smoking is prohibited in indoor areas open to the public. An indoor area is defined as an "indoor area or a portion of an indoor area accessible to the public by either invitation or permission" or an "indoor area of any establishment licensed or permitted" for the "sale or possession of alcoholic beverages." Smoking is also prohibited in government-owned or government-operated means of mass transportation.

Exceptions to this law include:

private homes (including those used as businesses unless they are used to provide child care or day care),
private automobiles (unless used for public transportation of children),
hotel rooms (as long as the total number of smoking rooms is not greater than 25%),
tobacco stores whose primary activity is the sale of tobacco products and the sale of other products is incidental,
any facility of a manufacturer, importer, wholesaler, or distributor of tobacco products or of any tobacco leaf dealer or processor in which employees work or congregate, and
any research or educational laboratory used for the purpose of conducting scientific research on the effects of smoking.

In addition, waivers may be granted if an owner can show that compliance would cause undue financial hardship or if there are other factors that make compliance unreasonable. Waivers will not be allowed after January 31, 2011.

What are the requirements?

Signs stating "smoking is permitted in this room" are required in all areas where smoking is allowed. The signs must be posted and maintained by the owner, operator, or manager.

If an action is brought under this law, it is an affirmative defense that the owner or an employee posted a "no smoking" sign; removed all ashtrays; and, if a violation occurred in a bar or restaurant, refused to seat or serve the individual that was smoking; and, if the individual continued to smoke after being warned, asked the individual to leave.

What are the penalties?

A first violation will result in a written warning. A second violation will result in a civil penalty of $100, and each additional violation will result in a civil penalty of not less than $250.

Employers also face civil penalties of at least $2,000 but not more than $10,000 if they fire or discriminate against an employee who made a complaint, gave information to the Department of Health and Mental Hygiene regarding violations, instituted or was about to institute a proceeding, or testified or was about to testify in a proceeding.

The Commissioner of Labor and Industry may bring an action for injunctive relief and damages against employees who make groundless or malicious complaints, bring actions in bad faith, or testify in bad faith in any proceeding under this law. Any penalty that is collected will go to the Cigarette Restitution Fund.