Allegheny County smoking ban put on hold
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Both sides claimed victory yesterday after an Allegheny County judge delayed a countywide ban on smoking in bars and restaurants that was set to take effect Jan. 2.
Common Pleas Judge Michael A. Della Vecchia, citing a "legal quagmire" over whether the county had the authority to enact such a ban, delayed its effective date until May 1 and urged the Legislature to clarify the issue before then.
About 90 smoking and nonsmoking patrons cheered the decision at Mitchell's Bar and Restaurant, Downtown, after owner James G. Mitchell declared, "Today is a great day for not only private business but a great day for the justice system. It worked. Anything that will stop this juggernaut of January 2 being jammed down own throats, the better."
Mr. Mitchell and fellow Downtown restaurateur John J. Petrolias challenged the county ordinance in a lawsuit funded by R.J. Reynolds Tobacco, arguing the smoking ban would cause irreparable harm to their businesses.
While Judge Della Vecchia delayed implementation of the smoking ban for restaurants and bars, he ruled the remaining sections of the county ordinance were valid and would take effect as scheduled.
The law includes a smoking ban for all other indoor venues and workplaces, including sporting facilities and concert halls.
Judge Della Vecchia said there was "no question that smoking and secondhand smoke are matters of public health, which the county's Health Department is absolutely justified in dealing with."
What is unclear, he said, is whether a "pre-emption" provision of the state's Clean Indoor Air Act, which banned local governments from enacting their own anti-smoking laws, was still in effect.
Attempts were made over the years to repeal the pre-emption clause, and then to repeal the repealer, Judge Della Vecchia noted.
"It is not fair to the people of Pennsylvania to place such an important issue ... in the realm of legal nitpicking. Implementation of [the county ban] places in confrontation public health issues versus individual rights. The debate on said issues [belongs] on the floor of the Legislature, not a courtroom."
Allegheny County Council President Rich Fitzgerald, who sponsored the smoking ban, called the ruling a "Christmas present" for citizens and a victory for home rule government.
"What the judge is saying is that the citizens of Allegheny County are allowed to set their own health policy," he said.
John F. Cambest, solicitor for County Council, said he interpreted the ruling as a challenge to state legislators to vote expeditiously on a statewide smoking ban.
"If the Legislature does not act by April 30 and the Commonwealth Court does not grant [the plaintiffs] a stay then the ban will go into effect May 1" for all bars and restaurants in Allegheny County, except taverns where food sales account for 10 percent or less of revenues and that have fewer than 10 employees.
"I am disappointed from a public health perspective," county Health Director Dr. Bruce Dixon said. "We're a little bit behind the times. If you look at other jurisdictions, at the state and local level people are moving ahead with prohibition of smoking in public. I would hope that Allegheny County would not be bringing up the end of the line."
Smoking bans have gained momentum in Pennsylvania despite uncertainties about the pre-emption clause of the state Clean Indoor Air Act.
Anti-tobacco ordinances also have made headway in Philadelphia, Harrisburg, Scranton and Erie.
Other municipalities are watching closely what happens in Allegheny County, said Bill Godshall, director of SmokeFree Pennsylvania, who attempted a citizen-initiated smoking ban and then filed a friend-of-the-court brief in support of council's ban.
Scranton's ban takes effect Jan. 7 and Erie's becomes law in 60 days.
Mr. Godshall called yesterday's ruling "very good news" for Pennsylvanians. "This is historic. This is going to move the state forward. Finally."
The Pennsylvania Tavern Association actively lobbied to stop the Allegheny County ban. But the Pennsylvania Restaurant Association has taken a different tack. Last summer, the organization voted unanimously to support a statewide smoking ban.
Kevin Joyce, director of the association and owner of The Carlton restaurant, Downtown, said members were compelled by a study that showed the deleterious health effects of secondhand smoke on casino employees. He thinks there is "a good chance" of passing a statewide ban before the injunction expires in April.
But Mr. Petrolias said he was relieved, for a different reason, that the matter was being left to lawmakers.
"When does the state Legislature ever do anything in 120 days?" he asked.
First Published December 23, 2006 12:00 am