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County's smoking ban halted by court
'No smoking' signs come down as bars, restaurants get respite from ban until challenge to county law decided
Wednesday, May 02, 2007

The ashtrays are back on the tables and the warning posters have come down from the walls of bars and restaurants in Allegheny County.

A state appeals court decided yesterday that the smoking ban will not be enforced in those settings until it rules on an appeal, filed by the owners of two Downtown restaurants, that challenges the county ordinance.

 
 
 
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"We're still in limbo," said Robert Borgoyne, assistant county solicitor. "I wish they would have made the decision, right, wrong or indifferent. Then we could decide whether to appeal it further or not."

James G. Mitchell of Mitchell's Restaurant and Bar and John Petrolias of Smithfield Cafe requested an injunction from Commonwealth Court after Common Pleas Judge Michael A. Della Vecchia refused Monday to further delay implementation of the county's smoking policy in dining and drinking establishments.

After that hearing, "we rushed back to the office [and] we got our paperwork in" to the appeals court, Mr. Mitchell said.

Because that court didn't issue its order until yesterday afternoon, local bars and restaurants briefly went smoke-free. Mitchell's, Smithfield Cafe and other establishments had to comply with the ordinance beginning May 1.

"So we can issue the ashtrays again," Mr. Petrolias said when he heard about the injunction. "We took them away [yesterday] morning. Now we're back to square one."

"It's a roller coaster," Mr. Mitchell said.

A cleaning program was begun in Eat'n Park restaurants when it seemed the ordinance would be implemented, said Kevin O'Connell, senior vice president of market- ing for the chain. Smoking sections in seven locations were thoroughly cleaned overnight.

Now those places will have smoking sections again, as will most of the other restaurants. But three, in Pittsburgh Mills, Wexford and South Hills Village, will undergo the process because they will remain smoke-free, he said. The newly renovated McKnight Road and Bridgeville sites are, too.

It's an experiment to see what the change will mean to patrons, employees and the bottom line, Mr. O'Connell explained.

"We might be waiting forever for the state or the county," he said. "We do believe in the long term the right thing to do is to go smoke-free. We need to understand what the impacts are if we do that by ourselves."

Commonwealth Court did not indicate when there might be a ruling on the appeal.

Even though it was in effect for only 15 hours, the ban was perceived as having some effect. Del Grant, a manager at the Beehive Coffeehouse on Carson Street, South Side, said business was down sharply at 5 p.m. yesterday. He guessed that part of the reason was that the Beehive's usual customers hadn't heard about the injunction.

"This place is usually packed," he said of the two almost-empty rooms in the coffeehouse where smoking is permitted. The main room, where the counter is, has been a no-smoking area for some time.

Mr. Grant, who said he supports the smoking ban, criticized the way it is being implemented -- or, rather, the way it is not being implemented, then implemented, then not implemented again.

"I'm all for the ban, but I think it has to be everywhere," he said. "It's not fair that some place has it and another place doesn't."

Both opponents and proponents of the ordinance said they wished the court issued the injunction a day earlier.

"We just have to rewind and erase the tape," said Guillermo Cole, spokesman for the Allegheny County Health Department. "We're back to where we were."

He noted that, as before, the injunction applies only to Mitchell's, Smithfield Cafe and "similar establishments." Applications for temporary waivers from eligible taverns will continue to be accepted and processed.

"We'll add to the waiver list because we don't know how this is going to pan out," Mr. Cole said. "Eventually they may rule in our favor."

Greg Hartley, assistant director of SmokeFree Pennsylvania, called Commonwealth Court's timing "horrific."

If the ordinance goes into effect again in bars and restaurants, people might just laugh, expecting another turnaround, he said.

But "if they had let it go for a few weeks, at least considered it, then a lot of places would have realized how good it is to be smoke-free and may have stayed that way," Mr. Hartley said.

Pat Joyce, owner of the 17th Street Cafe on the South Side, said businesses shouldn't be afraid of the ban. It hasn't hurt businesses in other parts of the country, he said, and it hasn't hurt his business, which voluntarily went smoke-free in January.

"If it has hurt us anywhere, it's hurt us in the late-night bar crowd," he said, "but we don't cater to the late-night bar crowd. Our primary focus is dinner. I would say 90 to 95 percent of our guests had asked us to go nonsmoking."

The result, he said, has been a healthier, happier clientele.

"You can smell the food better. You can taste the food better," he said. "Anyone can make a negative spin on this if they want. We chose to take it as a positive and work with it."

To Cindy Thomas, executive director of Tobacco Free Allegheny, "this ruling means the restaurant and bar workers will continue to be knowingly exposed to unnecessary and preventable risks in the workplace. The only winner here is big tobacco."

First published on May 1, 2007 at 11:30 pm
Staff writer Dan Majors contributed. Anita Srikameswaran can be reached at anitas@post-gazette.com or 412-263-3858.
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