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Can Allegheny County enact its vaping ban?

Theresa Clift
| Thursday, Jan. 19, 2017, 6:48 p.m.
Jason Lee, 32, manager of Vape Inn On Liberty, vapes inside his shop in Bloomfield, Tuesday, Jan. 3, 2017.
Andrew Russell | Tribune-Review
Jason Lee, 32, manager of Vape Inn On Liberty, vapes inside his shop in Bloomfield, Tuesday, Jan. 3, 2017.

The Pennsylvania Restaurant & Lodging Association is questioning whether Allegheny County has the legal authority to institute a proposed vaping ban that's been in the works since May.

A Jan. 12 letter to Allegheny County Council members from the Western Pennsylvania chapter of the association points to the preemption clause in the state's Clean Indoor Air Act.

Section 11 of the act, titled “Preemption of local ordinances,” reads: “This act shall supersede any ordinance, resolution or regulation adopted by a political subdivision concerning smoking in a public place. No political subdivision shall have the authority to adopt or enforce any ordinance, regulation or resolution which is in conflict with this act.”

Michael Parker, solicitor for the Allegheny County Health Department, said the department's legal analysis determined vaping products are not covered by the Clean Indoor Air Act or its preemption clause.

“The Clean Indoor Air Act only regulates ‘lighted smoking devices' and does not include any language on e-cigarettes or vaping,” Parker wrote in an email to the Tribune-Review. “A recent Clean Indoor amendment (HB 682) proposed by the legislature included e-cigarettes and vaping but was not passed. This acknowledged that e-cigarettes and vaping were not covered by the act.”

The proposal would prohibit vaping and e-cigarettes everywhere cigarette smoking is not permitted such as indoor workplaces, schools, restaurants, health care-related properties, theaters, sports facilities and transit stations.

During Tuesday's council meeting, Councilman James Ellenbogen, D-Banksville, urged the county to seek a legal opinion before proceeding.

“For us to spend months and months on this to find out it's not legal, I think, is a complete waste of time,” Ellenbogen said. “I think (the legality) is the most important issue at this point.”

Councilman Sam DeMarco, R-North Fayette, said he shares Ellenbogen's concerns about the legality but wants to schedule the public hearing and then revisit the legality issue if it comes up for a council vote. The council then voted unanimously to schedule the public hearing for Feb. 6.

The Pennsylvania Restaurant & Lodging Association's local chapter, which has about 600 members, supports a vaping ban but thinks it needs to be enacted at the state level, said Tim Zugger, chapter president and general manager of DoubleTree by Hilton Hotel & Suites in Downtown.

“We feel these types of items should always be addressed on the state level, not piecemeal with different municipalities,” Zugger said.

Melissa Bova, vice president of government affairs for the association, said the vaping ban could result in the same outcome as the county's ban on cigarette smoking in bars and restaurants in 2007. Commonwealth Court halted that ordinance with an injunction hours after it took effect and later that year issued a final ruling striking down the county ban. The General Assembly passed the Clean Indoor Air Act, which bans smoking in public places, in 2008.

After the Feb. 6 public hearing, the legislation is set to be considered by the council's Health & Human Services Committee, which could send it to the full council for a vote.

Theresa Clift is a Tribune-Review staff writer. Reach her at 412-380-5669 or tclift@tribweb.com.

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