Smokers can now exhale
Commonwealth Court's message to Allegheny County bar and restaurant patrons Tuesday was "smoke 'em if you got 'em."
The court issued an injunction Tuesday afternoon that effectively halts a ban on smoking in bars in restaurants that was only 14 or 15 hours old.
"We are pretty much back to where we were yesterday," said Guillermo Cole, Allegheny County Health Department spokesman. "We're back to having bars and restaurants having an exemption until further notice. We cannot enforce the ordinance against them and similar establishments.
"If it's just a bar and a restaurant, then we can't enforce it."
The ban went into effect Monday at midnight after Allegheny County Judge Michael Della Vecchia issued a temporary injunction in December that delayed the ban until May 1. Cole said Tuesday's decision by Commonwealth Court came as the result of an appeal of Della Vecchia's original ruling that argues that the county doesn't have the authority to institute a ban.
John Cambest, lawyer for Allegheny County Council, said he would review the matter with county officials to determine whether to appeal the decision to the state Supreme Court.
The temporary injunction holds until the Supreme Court overturns it or Commonwealth Court rules on the Pittsburgh businessmen's lawsuit. The suit claims the county ordinance includes unfair loopholes, such as a provision allowing bars employing fewer than 10 people and generating less than 10 percent of sales from food to seek waivers that permit smoking.
Commonwealth Court has no deadline to rule on that appeal.
The court's action was well-received by restaurant and tavern owners in the Allegheny County portion of the Valley. Most are concerned that the ban will drive business to similar establishments just a few miles away in Westmoreland County, where there is no ban.
"We took all the ashtrays off; we already had them put away downstairs," said Kevin Barwell, a manager at Hoffstot's in Oakmont. "I guess we have to go down and get them out again."
"I personally don't smoke, but I think it (injunction)'s good," Barwell said. "I don't think we should be the only county. It should be statewide."
That opinion is shared by other restaurant and bar owners and managers.
"My feeling is that I am pleased with the injunction because I just don't think it can be done on a county level," said Greg Glunt, owner of Sam Morgan's Clubhouse Inn in Harmar. "People can go a few miles up the road where they can eat, drink, smoke and pay 1 percent less in sales tax."
"I felt this was going to happen," Glunt said. "We were hearing that it was going to happen, but I was expecting it to happen near the end of the week."
John Azzara, owner of The Tarentum Station restaurant, said, "I wish they would make up their minds.
"First of all, I think that it is very unfair that it is only in Allegheny County. It should be everywhere. Secondly, I think it's way too much government. They are going to drive business across the river in to Westmoreland County."
Amy Christie, executive director of the Pennsylvania Tavern Owners Association, said she was surprised that the ban was put into effect in the first place. She said a similar ban previously was struck down by in Erie County Court.
"The judge struck it down because the state primacy law and the state Clean Indoor Act prohibits any non-smoking law that is stricter than the state's Clean Indoor Act unless it's proposed for Pittsburgh or Philadelphia.
"Basically, the tavern owners in Allegheny County are bracing to lose 10 to 15 percent of their business right off the top," Christie said. "The people who will feel the impact most directly are the licensees and some employees who may be laid off because of the drop in business."
Bars that have fewer than 10 employees and do 10 percent or less in food sales were able to apply for a temporary waiver from the ban. Cole said that there were 53 such waivers, which expire Jan. 1, 2009. He said the health department received numerous calls Tuesday from small tavern owners inquiring about the waivers.
"Some (owners) called and said, 'I want to fire my chef, close my kitchen so I can apply for the waiver.'
"You can't do that now, it's too late," Cole said. "Your bar had to be like that before the ordinance was passed."
Sam Morgan's Glunt believes it is only a matter of time before a statewide smoking ban is in effect but, even though he is a smoker, that's OK by him. He said it's happening across the country, piece by piece.
In the meantime, he has to adjust to the latest development by retrieving his restaurant's ashtrays from storage.
"I can't tell you that it is not pleasant -- not having the smoke," Glunt said, "It's just that it's not a level playing field."
As for how local bar patrons reacted to Tuesday's injunction, Tina Bailey, of West Deer, said it could have been the difference between her ordering takeout or enjoying the evening at Do Drop Inn, Harrison.
"If I couldn't smoke, I just wouldn't come in," she said. "If I can't actively enjoy myself, there's no sense in going out and paying to eat at a place where I can't smoke."
Bailey said she understands nonsmokers' argument. But she wonders why there can't be some allowance for having a bar or restaurant divided in such a way, with a wall, that smokers could smoke and nonsmokers wouldn't be affected.
Bailey's husband, Dana, doesn't smoke, but said that cigarette smoke ordinarily doesn't bother him.
"If I want my wife's company or my friends' company, it's something I have to deal with," he said. "If it starts to bother me, I can always just walk away."
Dana Bailey said he overheard some bartenders commenting on Tuesday afternoon that a patron walked out after being told he couldn't smoke at the bar.
"He just picked up his keys and left," Bailey said.
A Do Drop Inn bartender said that when a TV news report aired announcing that the ban had been temporarily lifted, bar patrons were ecstatic when employees started putting ashtrays back on the tables.
Staff writer Michael Aubele contributed to this report. Bonnie Pfister of the Pittsburgh Tribune-Review contributed to this report.
