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Libertarians join tobacco lobbyists to target Friendship Heights’ public smoking ban and the inalienable right to light up.
Cigarette-smoking bans often make bedfellows out of total strangers. Outside office building entrances or in tight airport smoking areas, people who’d never share the same space otherwise gather together to puff away.
In Friendship Heights, however, the rituals of public smoking have brought together two more likely allies: Maryland tobacco lobbyists and libertarian scholars from the Cato Institute in downtown D.C. Together, they’ve launched a legal challenge to a Friendship Heights ordinance that extends a conventional indoor smoking ban to include outdoor smoking on virtually all public property in the 32-acre village, located just north of the District line.
Robert Levy is perhaps the most prominent and vociferous detractor of the Friendship Heights smoking ban. Levy is a senior fellow in constitutional studies at the Cato Institute, a libertarian think tank that usually focuses on national issues. Levy has published numerous articles criticizing tobacco-related legislation, including “Lies, Damned Lies, & 400,000 Smoking Deaths”a controversial 1998 study that condemns the war on smoking as a “monster of deceit and greed.”
Levy just happens to live near Friendship Heights, and he describes the ordinancewhich prohibits lighting up on streets and sidewalks and slaps repeat offenders with $100 finesas “an extreme case of government overreaching.” After the Montgomery County Council passed the Friendship Heights ban in the glare of national attention in December, Levy decided that he should publicly debate the bill’s champion, Friendship Heights Mayor Dr. Alfred Muller. In such a forum, Levy says, he hoped to make counterarguments that would silence Friendship Heights’ “anti-tobacco fervor.”
Levy didn’t know the mayor, but his wife, Diane Levy, had met Muller and chatted with him on a few occasions as she walked their short-haired dachshund, Huey, in the neighborhood. Levy asked his wife to extend his debate invitation the next time that she and Huey bumped into Muller. By early January, Levy had arranged a Feb. 15 debate with the mayor.
But Levy concluded that scoring debating points alone wouldn’t vanquish the ban. Later in January, he called Bruce Bereano, a lobbyist for the Maryland Association of Candy and Tobacco Wholesalers, to learn more about the ordinance. Bereano’s group had lobbied against the ban with the Montgomery County Council, and it was looking for an opening to file a lawsuit to challenge the ban on procedural grounds. When Bereano discovered that Levy lived in the area, he figured he’d found his plaintiff.
“Bereano asked me if I was interested in a lawsuit,” says Levy. “At first, I said no because I didn’t want to get bogged down in something like that.”
Yet the offer to instigate a civil liberties skirmish in his own back yard eventually proved irresistible to Levy. The Cato scholar had criticized the proliferation of intrusive government regulations in guest columns for USA Today and the Washington Post, but this was a chance to take on the most “extreme” smoking ban that he’d ever encountered personally.
According to Levy, Bereano put him in touch with attorneys at Joseph, Greenwald & Laake, a Greenbelt firm, to talk about the possible lawsuit. Sources close to the suit say that the firm’s interest in Levy’s suit is strong and that it has taken the case on a pro bono basis. Cary Hansel, one of the firm’s partners, would not confirm that arrangement, but he says that he has welcomed the chance to represent Levy.
“Levy’s a mover-shaker in the world of constitutional law,” Hansel observes. “Obviously, there are benefits of taking on a case when someone like that’s involved. There are nonfinancial benefits when a firm takes on a case with high social value.”
Robert Levy’s lawsuit almost ran aground before it could get under way, when the Cato scholar made a surprising discovery: He wasn’t actually a resident of Friendship Heights. His apartment complex was, in fact, located about a half-block outside the official boundaries of the village. Levy had no legal standing to proceed with his case.
Enter Jacobo Rodríguez. As assistant director of Cato’s Project on Global Economic Liberty, Rodríguez spends most of his days studying international banking regulations and pension reform in developing countries. Yet when Rodríguez, a bona fide Friendship Heights resident, first heard about the smoking ban, he says, he became increasingly disturbed by what he perceived as a constitutional crisis in his own neighborhood.
“This ordinance struck me as arbitrary and paternalistic,” says Rodríguez. “I had tried to think of what we could do to stop it.”
Although the Cato Institute’s press release about the lawsuit asserts that he is a nonsmoker, Rodríguez says that he does indulge in the occasional cigar. Yet he argues that personal enjoyment of tobacco had little to do with his decision to jump into the case.
“You’ve got to get at something this extreme at the root,” argues Rodríguez. “If this ban stays, what’s next? Lining up all Friendship Heights residents for jumping jacks every morning?”
Although Rodríguez and Levy frame the smoking-ban case in constitutional terms, their lawsuit does not argue that the ban infringes on the right to smoke. Instead, it challenges the ordinance on procedural grounds, asserting that because Friendship Heights is a special taxing districtand not a cityit lacks the necessary police powers to enforce the ordinance.
After Rodríguez agreed to take the front seat in a lawsuit that he hadn’t initiated, the Cato scholars’ motions bore fruit. On Jan. 26, a Montgomery County judge issued a temporary restraining order that prohibited the village from enforcing the ban and ordered a hearing for Feb. 15.
The Cato Institute routinely files legal briefs in court cases involving all sorts of government policy issuesfrom labor laws to environmental regulationsbut it has never before been in the down-and-dirty business of fighting lawsuits itself. Cato’s public affairs director, Randy Clerihue, observes that Rodríguez is the first Cato scholar to personally play a role in a lawsuit of this kind in the institute’s 24-year history.
Rodríguez insists, however, that he’s filing the suit as a private citizen. “I’m doing this as a resident of Friendship Heights, not as a Cato scholar,” he says.
The Cato Institute hasn’t been shy about publicizing Rodríguez’s case, however, sending out a press release that trumpets the lawsuit by a “Cato scholar” and offering Levy and Clerihue as press contacts. Rodríguez agreed to be interviewed for this article, butciting his wish to maintain a “low profile”he declined a Washington City Paper request to take his photograph.
Rodríguez is trying to stay out of the public eye, but the normally quiet village of Friendship Heights can’t seem to stay out of it. The 5,000-resident community was traditionally known mostly for its condominiums and commercial clusters. Now, though its smoking ban has not yielded a single fine to date, the measure has attracted worldwide press coverage.
The sudden notoriety of Friendship Heights received even more of a boost earlier this month when the village’s mayor suddenly found himself facing more serious problems than litigating libertarians. The D.C. Metropolitan Police Department charged the longtime mayor with second-degree sexual abuse for allegedly molesting a 14-year-old boy in a National Cathedral restroom on Feb. 1. Muller denies the charge and has pleaded not guilty.
Muller did not return phone and e-mail messages seeking comment on the smoking-ban lawsuit, but he has publicly touted the ordinance in press interviews and in an essay posted on the Friendship Heights Web site as a safeguard against secondhand smoke and a tool for discouraging children from picking up the addictive habit. Following the filing of Rodríguez’s lawsuit, Muller announced that he would not honor his agreement to debate Levy on Feb. 15.
And, despite criticism that Friendship Heights has become Big Brother, one village councilmember says that her support of the ordinance hasn’t wavered.
“I have no regrets about this ban,” says Councilmember Patricia Forkan. “The fact that there’s a lawsuit is not surprising. Whenever there’s a new, cutting-edge policy, some people are going to get worked up. But what might seem like an infringement of rights now won’t seem that way in a few years, as more and more communities [adopt] policies that protect the rights of nonsmokers.”
Other Friendship Heights councilmembers are less forthcoming about the suit against the village. Councilmembers James Salter and Frank Valeo declined to comment on the lawsuit or the smoking ban in general.
Thanks to Rodríguez, Levy will get his day in court, but the debate arranged over a dog walk is still off. After Muller dropped out, Friendship Heights Village councilmembers decided against fielding a replacement speaker. CP