County's smoking ban in ashes

Commonwealth Court rules only Legislature has authority over indoor air quality

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A smoking ban passed by Allegheny County last October was struck down yesterday by the state Commonwealth Court, which ruled that county exceeded its authority.

"Regardless of our own sense as to whether local communities should be permitted to impose stricter regulations in this area, we may only interpret and apply the law as set forth by the general assembly," the three-judge panel wrote. "We, therefore, are constrained to find the county was without authority to enact the ordinance."

According to the court's 16-page opinion, the state's Clean Indoor Air Act, passed in 1988, "shall preempt and supersede any local ordinance or rule," pertaining to smoking in public places, including restaurants that seat 75 or more people.

The Commonwealth Court found that the General Assembly's use of that language was specifically intended to prohibit local legislation on smoking in restaurants.

The county has not yet decided if it will appeal.

James G. Mitchell, one of the two restaurant owners who sued over the ban, praised the ruling.

"We said all along the county government -- or a rogue committee -- didn't have the authority to seek out and supplant state law that they feel is antiquated or doesn't conform to their needs," said Mr. Mitchell, the owner of Mitchell's Bar & Restaurant.

He said he has heard from many non-smokers who supported his decision to fight the county ban, mostly because they didn't want another, unnecessary level of governmental control.

The legal bills for Mr. Mitchell and the other restaurant who sued with him, Smithfield Cafe, were paid for by R.J. Reynolds Tobacco.

Had the ban gone into place, Mr. Mitchell said he felt his business, opened in 1906 by his grandfather, would have been devastated.

"If it's a statewide ban that includes everyone, including casinos, I don't have a problem with that," Mr. Mitchell said. "Everyone knows smoking is bad for you. We're just trying to protect our livelihood here."

But William Godshall, the executive director of SmokeFree Pennsylvania, said the commonwealth is way behind on the issue.

There are 20 states that now have comprehensive workplace smoking bans, which include restaurants and bars. And in just the last month, Minnesota, Illinois and Maryland have passed similar legislation.

A statewide smoking ban took effect in Ohio earlier this month.

"It's unfortunate our state Legislature has to be shamed into doing what's right," Mr. Godshall said. "The cigarette companies have done a very effective job of mobilizing opposition to this. Those two restaurateurs were the puppets, and the tobacco industry held the strings."

The county adopted the smoking ban in October 2006, and the two restaurants then filed a complaint challenging it.

Allegheny County Common Pleas Court Judge Michael A. Della Vecchia denied the restaurants' request to strike down the ban. The court did, however, issue an injunction prohibiting it from going into effect until May 1, pending an appeal to Commonwealth Court.

The Commonwealth Court issued an injunction continuing the ban that day, pending its decision released yesterday.

If the county chooses to appeal the court's decision, it would file a petition for review with the state Supreme Court, asking for permission to appeal within 30 days.

"It's a pretty hot issue, so the supreme court might want to take it," said county solicitor Michael Wojcik.

It could take six to eight months before the Supreme Court decides to accept the appeal, and the entire process could take two years, Mr. Wojcik said.

"The chief executive has said this issue cries out for the Legislature to act. It should be a statewide resolution," he said. "It doesn't make sense to have one set of rules for Allegheny County, another for Beaver and another for Butler. The effect would be pushing it across the border."

Supporters of a statewide ban on workplace and indoor smoking held a "Clear Indoor Air'' rally yesterday at the state Capitol. The event was aimed at "urging state lawmakers to support a smoke-free policy for all indoor areas and workplaces through the state,'' said Chuck Moran, a spokesman for the Pennsylvania Medical Society.

Advocates argue that a workplace smoking ban should be done on a statewide basis, not piecemeal from county to county.

At the rally were Pennsylvania Restaurant Association officials, including the president, Kevin Joyce, owner of The Carlton restaurant in Pittsburgh. Mr. Joyce said any statewide indoor smoking ban should also apply to gambling casinos.

But it's questionable whether the Legislature will vote on a statewide workplace smoking ban anytime soon.

Because the ban has now been overturned, a $16,250 fine imposed for smoking on the Lithuanian Citizens' Society of Western Pennsylvania at a bingo on March 22 will be dismissed as if it never happened, said Guillermo Cole, a spokesman with the Allegheny County Health Department.

Though the ban will not go into effect, some restaurants have chosen to be proactive, Mr. Cole said. Last month, eight new eateries opened in the county, and five of those are smoke-free.

Joyce Berry, who opened Confessore's on Library Road in Bethel Park on April 12, said it didn't matter if the smoking ban went in place, she would not allow it in her restaurant.

Her reasons range from having family members who died from lung cancer to disliking the smell of cigarette smoke. Ms. Berry, who moved to Pennsylvania from Florida, won't even allow employees to step outside of the building for a smoke break.

"We were totally in awe with our mouths open to see how many people smoke up here," she said.

In Allegheny County, the adult smoking rate for 2003 to 2005 was 23 percent, Mr. Cole said, while statewide in 2005, it was 24 percent, and nationwide, it was 20.9 percent.

County Council President Rich Fitzgerald said that besides being a blow to public health policy, the court's decision was another hit against the Home Rule charter passed eight years ago.

"The courts are taking away the ability of the citizenry to set policy to move the county forward," he said.

Despite the ruling, Mr. Fitzgerald said he was still glad the county implemented the ban.

"There still is an awful lot of good that's coming out of this, even with the setback the court dealt [yesterday]," he said. "I don't think they're all going to go backwards."

The University of Pittsburgh Medical Center will become smoke-free on July 1 as planned, a spokeswoman said. Smoking will not be permitted on any UPMC-owned property, including parking lots.

It's a policy that goes beyond what the county ordinance required and was developed to acknowledge "the negative public health impact of smoking, including secondhand smoke [and] to protect the health of our visitors and staff," said spokeswoman Clare Collins.

Other medical centers, including Allegheny General Hospital, will not be easing their smoking restrictions, either.

Although it has not had to comply with the ban, the Eat'n Park chain made five of its restaurants -- including the Bridgeville, McKnight Road, Wexford, Pittsburgh Mills and South Hills Village locations -- smoke-free to assess what impact it would have.

So far, "feedback from guests has been very positive," said Kevin O'Connell, senior vice president of marketing.

Cindy Thomas, executive director for Tobacco Free Allegheny, was disappointed with the court's decision, especially because there appears to be little drive on the part of Harrisburg policymakers to push ahead with a statewide policy.

It's possible in Allegheny County that "everybody could go back to the way they were, which is really unfortunate," she said. "The only thing we can do is encourage people who've already made the change to continue with that."


Staff writers Tom Barnes and Jim McKinnon contributed. Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620. Anita Srikameswaran can be reached at anitas@post-gazette.com or 412-263-3858.


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