Restaurant and bar owners trying to reduce or kill Allegheny County's 10 percent drink tax will appeal their latest setback.

Common Pleas President Judge Joseph James yesterday affirmed a recent county board of elections ruling removing from the ballot a referendum question submitted by the anti-drink tax group Friends Against Counterproductive Taxation, saying the board was correct in ruling that citizen-driven referenda cannot set municipal tax rates.

The judge also struck down County Council's referendum question -- "Shall the county enact an ordinance to increase real estate taxes in order to repeal the alcoholic drink tax?" -- as advisory in nature and nonbinding. State law does not allow advisory referenda.

"It's always tough to fight city hall," said Cris Hoel, a FACT attorney.

The group, which wants voters to approve a reduction of the drink tax from 10 percent to 0.5 percent, plans to appeal Judge James' ruling to Commonwealth and Supreme courts, he added.

"We have said all along that we fully expected this challenge to go all the way to the Supreme Court," said Kevin Joyce, proprietor of The Carlton, Downtown, and a leader of FACT.

"We feel that the farther we get away from the shadow of [Allegheny County Chief Executive] Dan Onorato, the state courts will rule in our favor at some point when they have a full reading of our county code and [home rule] charter," Mr. Joyce said.

Kevin Evanto, Mr. Onorato's spokesman, welcomed Judge James' ruling, saying: "The chief executive has always said he would rather have no drink tax referendum question on the ballot."