Smoking bans in doubt after Pa. court ruling

A Commonwealth Court decision issued this week calls into question whether municipalities in Pennsylvania have the legal right to limit smoking in restaurants, workplaces, and other indoor areas.

But the decision, which invalidated a smoking ban in Allegheny County, apparently will not affect the smoking ban adopted in Philadelphia last year.

"Our law remains in effect and will be enforced," City Solicitor Romulo L. Diaz Jr. said.

On Tuesday, a three-judge Commonwealth Court panel threw out an ordinance that made smoking illegal in workplaces, restaurants, and other public spaces in Allegheny County, which includes the city of Pittsburgh.

The judges ruled that the state legislature had assumed jurisdiction over smoking in 1988 when it enacted the Commonwealth Clean Indoor Act, which required larger restaurants to have no-smoking sections. One section of that law stated that its provisions would "preempt and supersede" local regulations.

The judges concluded in their opinion, handed down Tuesday: "We, therefore, are constrained to find the county without authority to enact the ordinance."

The reason that none of this seems to apply to Philadelphia is that the city was specifically exempted from the 1988 law, freeing City Council to regulate smoking within city limits.

"I'm confident that the Commonwealth Court decision does not affect the authority of the city of Philadelphia to enact a smoking ban," Diaz said.

Allegheny County officials have not decided whether to appeal the ruling to the state Supreme Court. Michael Wojcik, the county solicitor, said he agreed with the Commonwealth Court ruling and thought the state should have a uniform smoking policy.

"If we're going to have a smoking ban, I think it should be statewide," Wojcik said in a telephone interview. "I don't want to see Allegheny County establishments harmed by losing business across borders to other counties."

James G. Mitchell, one of the restaurant owners who challenged the Allegheny County ordinance, said he would have no problem with a statewide ban.

"Everyone knows smoking is bad for you," he told the Pittsburgh Post-Gazette. "We're just trying to protect our livelihood here."

William Godshall, executive director of SmokeFree Pennsylvania, disputed the court's legal reasoning but agreed that the decision underlines the need for legislative action.

"The momentum is on our side," Godshall said yesterday, noting the victory in Philadelphia's mayoral primary last week of Michael Nutter, who pushed for the city smoking ban as a councilman, and the recent adoptions of bans in nearby states. "Pennsylvania has become an island of smoke in the Northeast."

A smoking ban is part of Gov. Rendell's Prescription for Pennsylvania, a proposal he made in January to improve the health of state residents. According to a poll done by Quinnipiac University earlier this year, 60 percent of state residents support such a ban.

Advocates of antismoking legislation rallied in Harrisburg earlier this week and were told by State Sen. Stewart Greenleaf (R., Bucks and Montgomery) to expect a vote in the Senate soon. "I think it's important for the people of Pennsylvania to breathe healthy, clean air," Greenleaf said.

Opposing a statewide ban are several groups, including the Pennsylvania Tavern Association.

Pennsylvania communities with smoking bans, in addition to Allegheny County and Philadelphia, include Scranton, Erie County and New Hope, according to Godshall.

The Commonwealth Court opinion was written by Judges James Gardner Colins and Renee Cohn Jubelirer and Senior Judge Jim Flaherty.