Mitchell's Bar & Rest. v. Allegheny County

924 A.2d 730

MITCHELL'S BAR & RESTAURANT, INC. and 639 Smithfield Corp., d/b/a Smithfield Cafe v. ALLEGHENY COUNTY and Daniel A. Onorato, as Chief Executive of Allegheny County, and Allegheny County Council, Appellants.

Mitchell's Bar & Restaurant, Inc., and 639 Smithfield Corp., d/b/a Smithfield Cafe, Appellants v. Allegheny County and Daniel A. Onorato, as Chief Executive of Allegheny County, and Allegheny County Council.

No. 191 C.D. 2007.

No. 192 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued March 6, 2007.

Decided May 22, 2007.

John F. Cambest, Robert Burgoyne, and Rebecca E. Morris-Chatta, Pittsburgh, for appellants.

John E. Iole, Pittsburgh, for appellee.

BEFORE: COLINS, Judge, COHN JUBELIRER, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge COHNJUBELIRER.¹

This case involves whether the Commonwealth's Clean Indoor Air Act,² which regulates indoor smoking in public places, preempts, meaning prevents, Allegheny County from subsequently enacting an ordinance prohibiting indoor smoking in public places in Allegheny County (Ordinance).³ Two Pittsburgh restaurants claiming to be impacted by the Ordinance, Mitchell's Bar and Restaurant, Inc. and 639 Smithfield Corp., doing business as Smithfield Cafe, (collectively referred to here as the Restaurants), filed an action in the Court of Common Pleas of Allegheny County (trial court) seeking: (1) a declaratory judgment declaring the Ordinance ultra vires;⁴ and (2) to permanently enjoin the County from enforcing the Ordinance. The trial court found that the Ordinance was not ultra vires. The trial court also denied permanent injunctive relief, although it granted an injunction to prevent enforcement of the Ordinance through April 30, 2007, at 11:59 p.m.

There are three issues on appeal: (1) whether certain provisions of the Commonwealth's Clean Indoor Air Act were effectively repealed by the Legislature; (2) if they were not repealed, whether these provisions preempt local regulations, thereby rendering the County's Ordinance ultra vires; and (3) if the Ordinance is ultra vires, whether the Restaurants are entitled to injunctive relief. After first setting forth the facts, we address these issues in turn.

The statutory sections at issue in this appeal, Sections 10.1 and 15.1 of the Act of April 27, 1927, P.L. 465(Act),⁵ arise from amendments the General Assembly made to several sections of the Fire and Panic Act by the Act of December 21, 1988, P.L. 1315. Sections 10.1 and 15.1 are commonly referred to as the "Commonwealth Clean Indoor Air Act."

"The purpose of the [Commonwealth] Clean Indoor Air Act is to protect public health and to promote the comfort of all persons within public places, at public meetings and in certain workplaces by regulating and controlling smoking." Quinn, Gent, Buseck and Leemhuis, Inc. v. Unemployment Compensation Board of Review, 147 Pa.Cmwlth. 141, 606 A.2d 1300, 1304 (1992); see also Section 10.1(a) of the Act, 35 P.S. § 1230.1(a) ("The purpose of this section is to protect the public health and to provide for the comfort of all parties by regulating and controlling smoking in certain public places and at public meetings and in certain work-places.") The Commonwealth Clean Indoor Air Act establishes a broad application of its provisions to Commonwealth municipalities, and Section 15.1(a) specifies that "[t]his act shall preempt and supersede any local ordinance or rule concerning the subject matter of sections 3.5 and 10.1 of this act."⁶ 35 P.S. § 1235.1(a) (emphasis added) (footnote omitted). Section 10.1 provides that all public places, including restaurants that seat 75 or more people, must provide separate smoking and non-smoking sections, and provides rules for implementing these sections. Section 10.1 also exempts restaurants seating less than 75 persons from having to maintain a non-smoking section, but leaves it within the restaurant's discretion whether to maintain a non-smoking section. For these exempt restaurants, Section 10.1 imposes certain requirements if they choose to have a non-smoking section, and different requirements if they choose to not have a non-smoking section.⁷

On October 4, 2006, the County, operating under the Allegheny County's Home Rule Charter, adopted the Ordinance, No. 23-06-OR, which made several amendments to the County's "Health Department Regulations." Among these amendments was a prohibition of all smoking in any public place in Allegheny County. In relevant part, the Ordinance provides that:

No person shall smoke or possess a lit tobacco smoke producing instrument in any of the following locations . . .:

(1) In any Enclosed Area to which the general public is invited or in which the general public is routinely permitted, including, but not limited to:

* * * *

(iv) Food or Beverage Establishments

(Ordinance Section 2, Health Department Regulations § 880-2(a)(1)(iv).) The term "Food or Beverage Establishment" is defined to include "[a]ny restaurant, bar . . . or any other eating or drinking establishment which gives or offers for sale food or drink to the public . . . for consumption on or off the premises. . . ." (Ordinance Section 2, Health Department Regulations § 880-1(b).) The Restaurants involved in the present litigation are both located in the City of Pittsburgh, which is itself located in Allegheny County. Accordingly, the Ordinance would prevent the Restaurants from allowing smoking within them.

The Restaurants filed a Complaint seeking a declaratory judgment that Section 10.1 of the Act provides a complete regulatory scheme regarding smoking in public places, specifically restaurants and bars, and that Section 15.1 of the Act preempts all attempts by Commonwealth municipalities to regulate smoking in public places. The Restaurants also sought permanent injunctive relief in this Complaint and filed a motion for preliminary injunctive relief, both requests seeking an injunction against the County from enforcing the Ordinance.

The trial court held one hearing to address all matters, including the declaratory judgment action, as well as the requests for both preliminary and permanent injunctive relief. On December 22, 2006, the trial court issued an order denying the Restaurants' request for a declaratory judgment, but granting the injunctive relief for a limited period to terminate on April 30, 2007 at 11:59 p.m. The Restaurants appealed the denial of the request for declaratory judgment and appealed the trial court's decision as to injunctive relief, arguing that the injunction should be permanent.

I.

The first issue we must address is whether the General Assembly effectively repealed section 15.1 which contains the preemption provision. In November 1999, the General Assembly adopted The Pennsylvania Construction Code Act (Construction Code), Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-7210.1103, which included a provision that, when effective, would repeal Section 15.1 (the Repealer).⁸ The effect of this provision would be to eliminate the section of the Act which provides that Section 10.1 would "preempt and supersede" local regulations in this area. However, the legislature attached conditions to the Repealer, specifying that the Repealer would not become effective until ninety days after the publication of regulations implementing the Construction Code.⁹ The regulations were not published for several years, until 2004. In the interim, in 2000, approximately four years before the publication of the regulations implementing the Construction Code (and one year after the General Assembly had passed the Repealer), the General Assembly repealed the Repealer.¹⁰

Section 1977 of the Statutory Construction Code, 1 Pa.C.S. § 1977, sets out the interpretive rule to apply when a statute has been repealed by another statute which is, itself, later repealed. It states that, "[t]he repeal of a repealing statute shall not be construed to revive the statute originally repealed." (emphasis added). By its terms, this section applies to a statute that was "originally repealed" by another statute. Once a statute has been effectively repealed, the repealed provision cannot be revived. However, this case is different because the Repealer never became effective: its effective date was contingent on the publication of the regulations. Thus, although the General Assembly did adopt an act that would have repealed the preemption provision if it had become effective, that repeal never became effective and the preemption provision was not "repealed." In other words, until the date upon which the Repealer became effective, the preemption provision remained in effect. Once the General Assembly repealed the ineffective repeal, the status quo simply continued.

This conclusion is consistent with precedent from our Pennsylvania Supreme Court, which has held that where a repealer statute does not become effective, the earlier statute remains in force. Mazurek v. Farmers' Mutual Insurance Company of Jamestown, 320 Pa. 33, 37, 181 A. 570, 572 (1935) (holding that a statute that, if valid, would repeal an earlier statute, is found to be unconstitutional, and therefore invalid, the earlier statute remains in force.) We note other jurisdictions faced with a similar situation have reached similar conclusions. See, e.g., Opinion of the Justices, 357 So.2d 145, 147 (Ala.1978) (quoting from 73 Am.Jur.2d Statutes § 426 (1974) to hold that "where the repealing act is repealed before it takes effect, its repeal does not affect the original act in any way, it never having actually become inoperative.")

We also agree with the Restaurants that, if this Court were to conclude that the Repealer was effective from the date of enactment, we would be designating the effective date to be earlier than the date specifically mandated by the legislature, and essentially engaging in a legislative act. We, therefore, conclude that, here, the repeal of an as-yet ineffective repeal...