Tobacco company funding legal challenge to smoking ban
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Officials at tobacco giant R.J. Reynolds said yesterday the company is footing the bill for two Downtown restaurant owners to fight Allegheny County's smoking ban, set to take effect Jan. 2.
A representative said the company, based in Winston-Salem, N.C., also likely paid for phone banks the Pennsylvania Tavern Association set up to try to block the ban before County Council passed it 14-1.
For three weeks, phone bankers contacted constituents with liquor licenses and patched willing licensees directly into their council members' offices. The tavern association would not say who paid for the phone banks, but Reynolds said it funded similar efforts elsewhere.
"This is standard operating tobacco industry procedure," said Stanton A. Glantz, a professor at the University of California, San Francisco, who has been documenting tobacco control policy since 1978.
"The first city or county in a given state to pass a smoking ban gets sued. It's like clockwork. In the past, Philip Morris was more notorious, but Reynolds has been taking the lead lately," he said.
The practice is legal. Reynolds signs on as a joint client and funds local plaintiffs who have legal standing to sue, said spokeswoman Maura Payne.
The tobacco company's name does not appear on the paperwork, but it might pay "easily into the tens of thousands of dollars" to block anti-smoking legislation, said Edward L. Sweda, senior attorney at the Tobacco Control Resource Center in Boston.
Bill Godshall, who testified before County Council for Smoke Free Pennsylvania, said Reynolds "may have been looking for choice plaintiffs to make it look like the poor little restaurant owner versus the big bad county solicitor, where it really is the big bad R.J. Reynolds versus the poor little county solicitor."
The pressure has been building for the tobacco industry since the first anti-smoking laws passed in the mid-1970s. Since then, more than 500 municipalities in 35 states and the District of Columbia enforce smoke-free laws, according to the American Nonsmokers' Rights Foundation.
One of the first lawsuits to prevent a ban happened in 1994 when nine restaurants sued Puyallup, Wash., a city of 35,000 at the foot of Mount Rainier. The city council passed an anti-smoking law but voted to repeal it a few weeks before it took effect, they said, to avoid years of costly litigation against the tobacco industry.
"They've just got bottomless pockets and we do not,'' Mayor Mike Deal reportedly explained.
Dozens of times tobacco firms have bankrolled campaigns around the country to block smoking bans or paid for lawsuits after the anti-smoking ordinances pass, said Bronson Frick, of Americans for Nonsmokers' Rights, in Berkeley, Calif.
They sue over pre-emption, arguing that local government doesn't have the authority to pass the law, or say the bans will cause irreparable harm to businesses, a claim Dr. Glantz said is unsubstantiated by research.
"In all but a few incidents, they lose their cases," he said, but their goal is to stall as long as possible.
Reynolds paid for two attorneys to file briefs this week and argue next week for an injunction against Allegheny County.
The two plaintiffs allege the state's 1988 Clean Indoor Air Act pre-empts the county and Chief Executive Dan Onorato from passing a law restricting indoor smoking.
They are two well-established, salt-of-the earth restaurateurs, said Kevin Joyce, owner of The Carlton and president of the Pennsylvania Restaurant Association.
A lawyer from Jones Day, the firm retained for many Reynolds' suits, asked Mr. Joyce if he would sign on as plaintiff. Mr. Joyce, who backs a statewide smoking ban, said he would rather not, but suggested several business owners who might be interested.
On behalf of James G. Mitchell, of the 100-year-old Mitchell's Bar and Restaurant, and John J. Petrolias of the 73-year-old Smithfield Cafe, Jones Day will oppose county officials in a hearing Monday before Common Pleas Judge Michael A. Della Vecchia.
First Published December 13, 2006 12:00 am