Opinion
No. 1785 C.D. 2014
07-08-2015
Al's Cafe, Inc., Petitioner v. Department of Health, Bureau of Health Promotion and Risk Reduction, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Al's Café, Inc. (Al's) petitions for review of an order of the Deputy Secretary for Administration, Department of Health (Department). The Department upheld a decision of its Bureau of Health Promotion and Risk Reduction (Bureau), which revoked an initial decision of the Bureau granting Al's application for an exception under the Clean Indoor Air Act (Act) which would permit Al's customers to smoke in the establishment. The Act and its provisions became effective on September 11, 2008. We affirm the Department's order.
Act of June 13, 2008, P.L. 182, 35 P.S. §§ 637.1-.11.
Al's is a bar/restaurant located in Bethel Park. Section 3(a) of the Act prohibits individuals from smoking in public places, including bars and restaurants, but Section 3(b)(10) of the Act provides an exception to this rule by permitting smoking in drinking establishments. Section 2 of the Act defines the term "drinking establishment" to include:
35 P.S. § 637.3(a).
35 P.S. § 637.3(b)(10).
35 P.S. § 637.2.
(2) An enclosed area within an establishment which, on the effective date of this section:
(Emphasis added.) Drinking establishments that are entitled to this exception are also known as Type II Drinking Establishments. On September 10, 2008, Al's applied to the Bureau for a Type II exception, and, following a Bureau inspection of the establishment, the Bureau sent Al's a letter on March 11, 2009, indicating that the Bureau had approved Al's application. On May 11, 2009, the Bureau revoked its initial approval, based upon the fact that the area of Al's where smoking was permitted was not enclosed or separated from the dining area by a doorway. On May 17, 2009, Al's appealed that decision, noting:(i) operates pursuant to an eating place retail dispenser's license, restaurant liquor license or retail dispenser's license under the Liquor Code; [or]
(ii) is a physically connected or directly adjacent enclosed area which is separate from the eating area, has a separate air system and has a separate outside entrance.
Enclosed are pictures of the doorway referred to in your letter. The door was installed well before the issue date of the exception. Smoking was not permitted until that time in accordance with the [Act].(C.R. at 28.)
It appears that the inspector notified a superior in the Bureau that she had indicated on her visual inspection form that although walls separated the dining and bar areas, only one of the two doorways between the two areas had a door. Thus, at the time of the inspection on January 29, 2009, there was no door separating the dining and smoking areas. (Certified Record (C.R.) at 24.)
In response to Al's May 17, 2009 letter, the Bureau sent a letter dated July 8, 2009, that characterized Al's request as one for reconsideration and denied that request. The Bureau's letter references the requirements for the grant of the exception and states that "[t]he [Bureau] has conducted a site-visit and has verified that your smoking area does not meet [Act] requirements because the smoking area is not enclosed and separate from the eating area." (C.R. at 30.) The letter advised Al's that it had the right to appeal the decision within ten days of the date of the letter. (C.R. at 31.) Although the Bureau initially deemed Al's appeal untimely, the Bureau eventually accepted the appeal and authorized Al's to continue to permit smoking in the bar area pending the resolution of the administrative appeal. (C.R. at 41.) By letter dated June 6, 2014, the Bureau advised Al's that the record was complete. (C.R. at 42-2.) On September 12, 2014, the Department sent Al's its Final Agency Determination and Order (Final Order).
In its Final Order, the Department noted the chronological and factual history above, including Al's claim that the door had been installed "well before the issue date of the exception." (Final Order at 8.) The Department thus identified the key legal issue to be whether remediation of the establishment, i.e., the installation of a door to separate the dining and bar areas, after the effective date of the Act provides a basis for issuing the exception. In other words, the Department viewed the status of the doorway at issue at the time the Act became effective to be the controlling date, not whether the door was installed at the time the exception was issued. The Department referred to several decisions of this Court and concluded that "it does not matter that there now exists a doorway with a solid door separating the smoking area from the non-smoking area[. ]What is dispositive is the condition that existed at the time of the effective date of the [Act]." (Final Order at 11.) The Department considered Al's statement that a door may have been installed before the date the exception was issued, but that on the date of the January 29, 2009 inspection, no door was installed. Essentially, the Department looked at the evidence, and, in light of the non-date-specific assertion that a door had been in place "well before the exception," concluded that the evidence did not support a finding regarding the date a door was installed, and, therefore, Al's had failed to establish that a door existed before the effective date of the Act. The Department concluded, therefore, that Al's failed to satisfy the requirements of the Act.
On appeal, Al's generally asserts that the Department's factual findings are not supported by substantial evidence and that, contrary to the Department's conclusion, Al's offered sufficient evidence to satisfy its burden of proof regarding the door. More specifically, Al's objects on the ground that, at the time the Bureau revoked the issuance of the exception, the term "enclosed" was not defined by the Act, regulations, or a decision of this Court. Based upon the lack of definition, Al's asserts that the Department's interpretation is arbitrary and capricious. Al's also contends that the revocation of the exception, following the initial grant of the exception constitutes an unlawful taking.
Our review of an adjudication by the Department is limited to considering whether necessary factual findings are supported by substantial evidence and whether the adjudicator erred as a matter of law or violated any constitutional rights. 2 Pa. C.S. § 704. --------
Al's first argues that substantial evidence does not support the Department's decision. Al's claims that it submitted its application on September 10, 2008, and that the application outlines the requirements necessary for a Type II exception. Al's iterates the specific requirements and asserts that it "submitted the required documentation to show that [it] was in compliance by September 11, 2008," (Petitioner's Brief at 8), but Al's does not point to any information or document in the record that support its claim other than evidence suggesting that Al's reviewed the requirements in the application and believed it was in compliance. Al's contends that, because the Act does not address situations in which a compliant establishment may engage in renovations that might temporarily result in non-compliance, the record supports its contention that Al's was in compliance.
Al's offers no legal citation or discussion, however, in support of the proposition that the submission of an application asserting that an establishment is in compliance is sufficient to create even an inference that the establishment actually is compliant, much less constitute clear evidentiary support for such a finding. Also, the lack of provision in the Act regarding post-effective-date renovations that may call for temporary non-compliance does not alter the facts found in this case. The Department apparently deemed the evidence Al's submitted regarding the status of the door to be insufficient, because, as noted above, while the Department might have found credible Al's claim that it had installed a door at some point in time before the issuance of the exception, it did not find any evidence of the actual date when a door had been placed in the establishment to separate the dining area from the smoking area. Questions concerning the credibility and weight to be accorded evidence are ones that are beyond this Court's standard of review. M.T. v. Dep't of Educ., 56 A.3d 1, 7 (Pa. Cmwlth. 2010), appeal denied, 20 A.3d 490 (Pa. 2011). Here, the problem is not the question of how an establishment that has demonstrated the initial right to an exception may proceed to engage in renovations that affect compliance. Rather, the problem is that Al's never established in the first instance that it was entitled to an exception at the time the Act became effective. Al's points to page 6 of its application (R.R. at 5a) as proof that it was compliant, but that form merely includes a checked box for Type II establishments, which indicates the requirement for enclosing a smoking area from an adjacent dining area. Accordingly, we reject these arguments.
Al's claims that decisions of this Court upon which the Department relied, including 901 Pub, Inc. v. Department of Health, (Pa. Cmwlth., No. 876 C.D. 2013, filed January 6, 2013), appeal denied, 96 A.3d 1030 (Pa. 2014), and Moonlight Café, Inc. v. Department of Health, 23 A.3d 1111 (Pa. Cmwlth. 2011), are distinguishable from this case. Both of those decisions involved the question of whether the smoking areas in the establishments were "enclosed" under the Act. In this case, as we have emphasized above, the question comes down to whether Al's offered proof of the existence of a door at the time the Act became effective. Al's asserts in its brief that it "was in compliance by September 11, 2008, with the bar area enclosed on all sides." (Petitioner's Brief at 12.) The record, however, contains insufficient proof of that alleged fact.
Based upon the foregoing, we reiterate that the question of whether Al's acted reasonably in allegedly discontinuing permitted smoking while it claims it was engaging in renovations of the establishment is irrelevant. The key question concerns whether Al's proved that it had installed a door or other mechanism to enclose the smoking area at the time the Act became effective. The evidence is insufficient on that key factual issue.
Accordingly, we affirm the Department's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 8th day of July, 2015, the order of the Deputy Secretary for Administration, Department of Health is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge