PARRIS N. GLENDENING, Governor                             S.B. 860

March 27, 1995

The Honorable Thomas V. "Mike" Miller

President of the Senate

State House

Annapolis, Maryland 21401

Dear Mr. President:

In accordance with Article II, Section 17 of the Maryland Constitution, I have today
vetoed Senate Bill 860. This decision is based as much on the technical and legal
problems associated with this bill as with its substance. With the passage of House Bill
1368 today, which was the culmination of a cooperative effort between this
Administration and the General Assembly, the concerns with Senate Bill 860 outlined in
this letter have been largely resolved.

Senate Bill 860 as amended restricts the authority of the Secretary of Licensing and
Regulation and the Commissioner of Labor to adopt regulations restricting smoking in
certain work places in the "hospitality" industry such as bars, restaurants, hotels and
motels, and also certain other social venues such as clubs. The bill does authorize the
Secretary to adopt some regulations restricting smoking with respect to other hospitality
related work places, but the bill includes various narrow restrictions on the scope of those
regulations. The bill is to be applied retroactively.

In response to approval by the Maryland Court of Appeals of regulations that restrict
smoking in the work place, the General Assembly drafted and passed SB 860. Those work
place regulations are authorized under statutes relating to worker safety and health, and
do not contain exceptions for the hospitality industry. Given that such exemptions must
be done statutorily, I expressed my desire to work with the General Assembly to make
modest statutory exemptions to the regulations. The fruits of that cooperative effort with
the General Assembly culminated in the passage of House Bill 1368, the companion bill
to Senate Bill 860.

Senate Bill 860 contains several technical and legal deficiencies that could not only
invalidate the entire regulation relating to work place smoking, but other regulations as
well. The problem stems from language that retroactively applies the bill's restrictions "to
affect the enforcement of any regulations, including COMAR 09.12.31.01 through .05 that
have been adopted by the Secretary of Licensing and Regulation or the Commissioner of
the Division of Labor and Industry that addresses the smoking or possession of tobacco in
establishments affected by this Act."

This retroactive prohibition could be interpreted to require the entire work place smoking
regulation to proceed anew through the adoption process. In fact, the Attorney General
has opined that "There is surely a risk a court might interpret Section 2 to displace
COMAR 09.12.23 in its entirety... [and that] a court might conclude that the regulations
on a whole are invalidated by their embedded requirements for the hospitality industry."

Several legislators, including the sponsor of the House Bill, assured me this was not the
intent, and the Attorney General has also opined that this is not the "best" interpretation
of the bill. However, the mere risk that the bill could be interpreted to undermine the

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