Gen. 335] 335

TOBACCO REGULATION

SMOKING RESTRICTIONS IN TALBOT COUNTY ) SMOKING

AREAS IN RESTAURANTS

September 29, 1995

The Honorable Walter M. Baker

Maryland Senate 

You have requested our opinion on two issues related to

Chapter 5 of the Laws of Maryland 1995, “Smoking in the

Workplace”:

1. The first issue concerns the relationship between Chapter

5 and Article 23 of the Talbot County Code, “Smoking

Prohibitions.” Specifically, your question is whether State law or

local law applies to a restaurant that possesses an alcoholic

beverages license in Talbot County. 

2. The second issue concerns the provision in Chapter 5 that

permits smoking in a “bar or bar area, a separate enclosed room not

exceeding 40% of the restaurant, or a combination of a bar or a bar

area and separate enclosed room not exceeding 40% of the total area

of the restaurant including the bar or bar area.” Your question is

whether “the total area” includes spaces in the restaurant, like the

kitchen, to which the public ordinarily does not have access. 

Our opinion is as follows:

1. Both State law and county law apply to a restaurant in

Talbot County with an alcoholic beverages license. The combined

effect of these laws is that such a restaurant may establish a smoking

area only in a “bar,” as defined in Article 23 of the County Code,

and a smoking area in a bar may not exceed 40% of the total area of

the restaurant, as specified in Chapter 5. 

2. The “total area” of a restaurant is to be calculated by

reference to the square footage devoted to food preparation and

service, including areas not ordinarily open to the general public. 
336 [80 Op. Att’y

1

 The relevant provisions of Chapter 5 are preceded by the phrase

“Notwithstanding any regulations adopted by the Commissioner ....”

2

 Chapter 5 amended LE §2-106, the basic grant of rulemaking

authority to the Commissioner of Labor and Industry and the basis for the

regulation prohibiting smoking in the workplace; LE §5-314, the

emergency rulemaking authority of the Commissioner; and §2-105 of the

Business Regulation Article, the rulemaking authority of the Secretary of

Labor, Licensing and Regulation. For brevity’s sake, this opinion will

refer only to LE §2-106. The provisions are identical in the other sections.

I

State Statute and Regulation

On July 22, 1994, the Commissioner of Labor and Industry

adopted a regulation generally prohibiting smoking in the workplace,

except in separately ventilated smoking rooms. COMAR 09.12.23.

The Commissioner acted to protect employees against the

documented hazards of environmental tobacco smoke. The

Commissioner declined to exempt bars and restaurants from the

regulation, because he found no sufficient basis on which to provide

a lesser degree of protection to employees in these workplaces. See

generally 80 Opinions of the Attorney General 306, 313 (1995). The

regulation was upheld by the Court of Appeals in Fogle v. H & G

Restaurant, 337 Md. 449, 654 A.2d 441 (1995). 

Disagreeing with some aspects of the regulation, the General

Assembly enacted Chapter 5 of the Laws of Maryland 1995, which

superseded the Commissioner’s regulation by allowing smoking in

certain locations.1

 One such location is “a restaurant as defined in

Article 2B, §1-102 of the Code.” See §2-106(c)(1)(i)5 of the Labor

and Employment (“LE”) Article, Maryland Code.2 Under the

definition in Article 2B, §1-102(a)(22)(i)1, a “restaurant” is a public

establishment “equipped with a dining room with facilities for

preparing and serving regular meals ... [i]n which the average daily

receipts from the sale of foods exceed the average daily receipts

from the sale of alcoholic beverages.” 

If a restaurant does not possess an alcoholic beverages license,

smoking is permitted in “a separate enclosed room not to exceed

40% of the total area of the restaurant.” LE §2-106(c)(1)(i)5A. If

a restaurant does possess an alcoholic beverages license, smoking is

permitted in “a bar or bar area, a separate enclosed room not
Gen. 335] 337

3

 The ordinance was sustained at a referendum in November 1994.

4

 The full definition of “restaurant” is as follows: “Any coffee

shop, cafeteria, sandwich stand, private or public school cafeteria, or any

other eating establishment which gives or offers for sale, food to the

public, guests, or employees, as well as kitchens in which food is prepared

(continued...)

exceeding 40% of the restaurant, or a combination of a bar or bar

area and a separate enclosed room not exceeding 40% of the total

area of the restaurant including the bar or bar area.” LE §2-

106(c)(1)(i)5B. The term “bar or bar area” means “an area within a

restaurant that is devoted to the serving of alcoholic beverages for

consumption by guests on the premises and in which the serving of

food is incidental to the consumption of the alcoholic beverages, and

the immediately adjacent seating area.” LE §2-106(c)(2). 

In its uncodified Section 2, Chapter 5 expressly preserves more

restrictive local smoking regulation: “[T]his Act is not intended to

preempt the authority of a county or municipal corporation to enact

any law or ordinance that is more restrictive of smoking in

establishments open to the public in which smoking is permitted

under Section 1 of this Act.”

In sum, the legal framework here is a sort of decision tree. The

threshold question is whether Chapter 5 authorizes smoking in a

particular setting. If not, then the Commissioner’s regulation

prohibitssmoking, regardless of what a local enactment might allow.

If so, the Commissioner’s regulation is displaced, but a local

enactment may nevertheless prohibit smoking. 

II

The Talbot County Ordinance

In August 1993, the Talbot County Council enacted an

ordinance restricting smoking in public places.3

 Codified as Article

23 of the Talbot County Code. “Smoking Prohibitions,” the

ordinance generally prohibits smoking in restaurants. §23-4(7).

However, the definition of “restaurant” excludes “a cocktail lounge

or tavern if said cocktail lounge or tavern is a ‘bar’ as defined

above.” §23-2.4

 See also §23-6A(1) (bars are not subject to
338 [80 Op. Att’y

4

 (...continued)

on the premises for serving elsewhere, including catering facilities, except

that the term ‘restaurant’ shall not include a cocktail lounge or tavern if

said cocktail lounge or tavern is a ‘bar’ as defined above.” 

smoking restrictions). The term “bar” is defined in §23-2 as follows:

“an area within a restaurant which is devoted to the serving of

alcoholic beverages for consumption by guests on the premises and

in which the serving of food is only incidental to the consumption of

such beverages. Although a restaurant may contain a bar, the term

‘bar’ shall not include the principal restaurant dining area.” 

The Talbot County ordinance contains its own provision

deferring to more restrictive law: “This Article shall not be

interpreted or construed to permit smoking where it is otherwise

restricted by other applicable laws.” §23-12. 

III

Smoking in Talbot County Restaurants

The Commissioner’s regulation prohibits smoking in

restaurants where Chapter 5 does not authorize smoking. Article 23

may not be given effect if it purported to allow more smoking in

restaurants in Talbot County than authorized by Chapter 5. 

We discern only one problem of this kind. Under Article 23,

§23-2, smoking is allowed in the bar, regardless of the proportionate

amount of space that a bar occupies. But Chapter 5 authorizes

smoking in a bar (or bar area) only up to a maximum of 40% of the

restaurant’s total area. The Commissioner’s regulation prohibits

smoking in any greater area. Hence, a restaurant in Talbot County

that has a bar exceeding the 40% limit may not allow smoking in the

entire bar, notwithstanding Article 23, §23-2. 

Conversely, Article 23 may be given full effect when it

prohibits smoking in restaurants, although Chapter 5 authorizes

smoking there. There are two such instances.

First, Article 23 does not allow smoking in a restaurant except

in a bar. Article 23 has no provision for a smoking area in a

restaurant without a bar; Chapter 5, by contrast, allows any

restaurant to have a “separate enclosed room” for smoking. Article
Gen. 335] 339

23 is, in this respect, “more restrictive of smoking in establishments

open to the public in which smoking is permitted under ... this Act”;

hence, Section 2 of Chapter 5 gives effect to Article 23. Because

Article 23 does not allow for smoking in a restaurant without a bar,

such a restaurant in Talbot County may not avail itself of the

“separate enclosed room” option under Chapter 5. 

Second, the definition of “bar” in Article 23, §23-2 does not

include the “immediately adjacent seating area” of the restaurant, as

does the definition of “bar or bar area” in Chapter 5. Therefore,

Article 23 is the more restrictive. Restaurants with a bar in Talbot

County may not permit smoking in the adjacent seating area of the

restaurant proper.

IV

Meaning of “Total Area”

Although Chapter 5 authorizes smoking in certain areas of a

restaurant, the law caps the size of the smoking areas at “40% of the

total area of the restaurant.” Chapter 5 does not define the term

“area.” Absent some evidence of a contrary legislative purpose, the

law is presumed to use the term in its ordinary sense. See, e.g., In

re Roger S., 338 Md. 385, 391, 658 A.2d 696 (1995). 

One common meaning of “area” is “the space or site on which

a building stands.” Random House Dictionary of the English

Language 110 (2d ed. 1987). Applying that definition, the phrase

“40% of the total area of the restaurant” invokes a measurement of

the total floor space for the building or part of a building that is used

for the “restaurant.” The term “restaurant” is defined in terms of

“facilities for preparing and serving regular meals ....” Article 2B,

§1-102(a)(22)(i)1 (incorporated by reference in LE §2-

106(c)(1)(i)5A). Therefore, the “total area of the restaurant”

includes all “facilities” that are related to the restaurant’s food

preparation and service ) not only the dining rooms but also the

kitchen and storage rooms. 

Had the General Assembly wanted to limit the maximum size

of the smoking area to 40% of the area of the restaurant frequented

by patrons, it did not lack for examples of precisely such a limit.

New York City’s Smoke-Free Air Act, which bans smoking in many

restaurants, allows smoking in a “smoking lounge” or “restaurant
340 [80 Op. Att’y

bar,” provided that “the smoking lounge and restaurant bar do not

individually or in the aggregate exceed 25% of the aggregate square

footage of the areas of such restaurant offering public dining,

beverage service and lounges ....” §17-503a5(B). See also §25-

808(a)(1) of the California Business and Professions Code (smoking

prohibited in restaurants except in “designated areas not exceeding

25% of the seating capacity”). The General Assembly’s choice of

the most general term reflects a decision not to limit to public rooms

the “area” from which the 40% limit is to be calculated. Cf.

Solander v. Municipal Court, 119 Cal. Rptr. 609, 611-12 (Cal. App.

1975) (contrasting general use of the term “area” in one part of a

statute with a more limited use in another part). 

V

Conclusion

In summary, it is our opinion that:

1. A restaurant in Talbot County that has an alcoholic

beverages license and a bar may allow smoking in the bar, as long

as the area of the bar does not exceed 40% of the area of the

restaurant. A restaurant in Talbot County may not permit smoking

in the area of the restaurant adjacent to the bar. 

2. The 40% limit on the size of the smoking area in a

restaurant is to be calculated by reference to the total floor space

used for food preparation and service, including areas not generally

accessible to the public. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice